                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                FEB 03, 2009
                            No. 08-13977
                                                              THOMAS K. KAHN
                        Non-Argument Calendar
                                                                  CLERK
                      ________________________

                        Agency No. A97-191-180

FNU ZULKIFLI,



                                                         Petitioner-Appellant,

                                  versus

U.S. ATTORNEY GENERAL,

                                                        Respondent-Appellee.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                            (February 3, 2009)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
       Fnu Zulkifli (“Zulkifli”), a native and citizen of Indonesia, petitions for

review of the Board of Immigration Appeals’s (“BIA”) order affirming the

Immigration Judge’s (“IJ”) order dismissing his application for asylum and

withholding of removal.1 This appeal presents two issues: (1) whether we have

jurisdiction to review the BIA’s determination that Zulkifli failed to file a timely

application for asylum; and (2) whether substantial evidence supports the

determination that Zulkifli did not meet the burden required for withholding of

removal.

                                               I.

       Conceding that he did not file his application for asylum within one-year of

his arrival into the United States, Zulkifli argues that the BIA erred by finding that

he failed to establish one of the exceptions, the existence of “changed

circumstances.” The Government responds that we lack jurisdiction to review the

denial of Zulkifli’s petition. “We review subject matter jurisdiction de novo.”

Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per

curiam).



       1
         Zulkifli has abandoned his claim for relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”)
because he does not challenge the IJ’s denial on appeal. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005).

                                                2
      An alien may apply for asylum if he “demonstrates by clear and convincing

evidence that the application has been filed within 1 year after the date of the

alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An application

filed after one year may be considered “if the alien demonstrates to the satisfaction

of the Attorney General either the existence of changed circumstances which

materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application within the period

specified . . . .” 8 U.S.C. § 1158(a)(2)(D). Section 1158(a)(3) provides: “No

court shall have jurisdiction to review any determination of the Attorney General

under paragraph (2).” 8 U.S.C. § 1158(a)(3).

      Under our current precedent, § 1158(a)(3) divests us of jurisdiction to

review the determination that an asylum applicant filed an untimely application or

failed to establish changed or extraordinary circumstances to excuse his untimely

filing. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217 (11th Cir. 2002) (per

curiam) (holding that federal courts lack jurisdiction to review the Attorney

General’s decision as to timeliness of an asylum request); see also Ruiz v.

Gonzales, 479 F.3d 762, 765 (11th Cir. 2007) (providing that § 1158(a)(3)

“divests us of jurisdiction to review decisions of whether an alien complied with

the one-year time limit, or whether extraordinary circumstances were present to

                                          3
justify untimely filing of the asylum application”). Thus, we lack jurisdiction to

review the BIA’s determination that Zulkifli failed to demonstrate that changed

conditions justified his untimely filing.2 See 8 U.S.C. § 1158(a)(3). Accordingly,

we dismiss for lack of jurisdiction Zulkifli’s petition for review with respect to his

asylum claim.

                                               II.

       Zulkifli argues that he is eligible for withholding of removal because, if he

returns to Indonesia, he has a well-founded fear of future persecution because of

his conversion to Christianity and marriage to an ethnic Chinese woman.

Specifically, Zulkifli asserts that his family has threatened to punish him according

to the traditional law by putting him “under the culture court” whereby he would

be “thrown into the jungle with feet and hands bounded or stoned to death.”

Further, Zulkifi offers evidence that Muslim extremist groups in Indonesia

persecute Christians and interracial marriages like his, and the Indonesian

government has not provided in the past adequate protection for its citizens. The


       2
         Although § 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231, 310 (2005), granted courts jurisdiction over constitutional claims or questions of law, we
have held that the Act did not vest us with jurisdiction to review a finding that an asylum
application was untimely or that extraordinary circumstances justified an untimely filing, because
these were discretionary or factual determinations. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d
954, 957 (11th Cir. 2005) (per curiam) (“The timeliness of an asylum application is not a
constitutional claim or question of law covered by the Real ID Act’s changes.”).

                                                4
Government responds that substantial evidence exists to support the IJ’s and

BIA’s finding that Zulkifli is not entitled to relief.

      We review only the BIA’s decision, except we also review the IJ’s decision

where the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, we

review the IJ’s decision as well.” Id. Because in this case the BIA adopted the

reasoning of the IJ, we review both decisions of the IJ and the BIA.

      We review the IJ’s and BIA’s factual determinations under the substantial

evidence test and will affirm if the decision “is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Mejia v.

U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (quotation omitted). Under

the substantial evidence test, we can reverse a finding of fact by the IJ or BIA

“only when the record compels a reversal; the mere fact that the record may

support a contrary conclusion is not enough to justify a reversal of the

administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.

2004) (en banc). We review the IJ’s and BIA’s legal determinations de novo.

Mejia, 498 F.3d at 1256.

      To obtain withholding of removal, an alien seeking withholding of removal

must show that his “life or freedom would be threatened in [his] country [of

                                            5
origin] because of [his] race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The alien bears the

burden of demonstrating that it is ‘more likely than not’ [he] will be persecuted or

tortured upon being returned to [his] country.” Tan v. U.S. Att’y Gen., 446 F.3d

1369, 1375 (11th Cir. 2006) (quoting Sepulveda, 401 F.3d at 1232).

“[P]ersecution is an extreme concept, requiring more than a few isolated incidents

of verbal harassment or intimidation, [and] . . . [m]ere harassment is not

persecution.” Ruiz, 479 F.3d at 766 (quotations omitted). The standard for

withholding of removal “is more stringent than the ‘well-founded fear of future

persecution’ required for asylum.” Tan, 446 F.3d at 1375 (citation omitted).

      An alien may satisfy his burden of proof for withholding of removal in two

ways. First, an alien may establish past persecution based on a protected ground.

Id. Past persecution creates a rebuttable presumption that he has a well-founded

fear of future persecution and shifts the burden to the government to show

changed conditions in the country or the ability to avoid a future threat through

relocation. Id. Second, an alien may establish that it is more likely than not that

he would be persecuted upon removal due to race, religion, nationality,

membership in a particular social group, or political opinion. Id. However, an

alien “must demonstrate that his or her fear of persecution is subjectively genuine

                                          6
and objectively reasonable.” Al Najjar, 257 F.3d at 1289. An alien cannot

demonstrate that he more-likely-than-not would be persecuted on a protected

ground if the alien could avoid a future threat by relocating to another part of the

proposed country of removal. Tan, 446 F.3d at 1375.

      Because Zulkifli did not allege, and no evidence exists, that he suffered past

persecution, he was not entitled to a presumption that he had a well-founded fear

of future persecution if returned to Indonesia. See 8 C.F.R. § 208.13(b)(1). The IJ

and the BIA determined that Zulkifli’s conversion to Christianity and marriage to

a woman of Chinese ethnicity did not render it “more likely than not” that Zulkifli

would be persecuted if returned to Indonesia. Having reviewed the record and the

parties’ briefs, we discern no error. Substantial evidence supports the

determination that Zulkifli did not establish an inability to avoid future

persecution. Notably, the IJ relied on evidence that the Indonesian government

extends “official status” to the Christian faith, recognizes some Christian holy

days, and the Indonesian constitution guarantees a citizen “the right to worship

according to his or her own religious belief.” Further, the IJ found that large

numbers of ethnically Chinese individuals live in peace in several areas of the

country, and the Indonesian government “officially promotes racial and ethnic

tolerance.” We agree that the record evidence does not compel a decision contrary

                                          7
to the IJ’s decision and therefore deny Zulkifli’s petition with respect to his

withholding of removal claim.

                                         III.

      Because we lack jurisdiction to review the determination that Zulkifli failed

to file a timely asylum application and conclude that substantial evidence supports

the BIA’s decision affirming denial of Zulkifli’s application for withholding of

removal, we dismiss Zulkifli’s petition with respect to the asylum claim and deny

the petition with regard to the withholding of removal claim.

      DISMISSED IN PART and DENIED IN PART.




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