                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        January 31, 2006
                              FOR THE TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                          Clerk of Court


    WALID MOHAMMED HAIMOUR,

                Petitioner,

    v.                                                   No. 05-9520
                                                      (No. A-78-889-230)
    ALBERTO R. GONZALES, Attorney                    (Petition for Review)
    General,

                Respondent.


                              ORDER AND JUDGMENT *


Before HENRY, McKAY, and MURPHY, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Petitioner Walid Mohammed Haimour, a native and citizen of Jordan and a

non-practicing Muslim, seeks a petition for review of a final order denying his


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
application for asylum, see 8 U.S.C. § 1158(a), or for restriction on removal, see

id. § 1231(b)(3)(A), and ordering his removal. Because we have no jurisdiction

to review the Board of Immigration Appeals’ (BIA) decision denying

Mr. Haimour’s request for asylum as untimely filed, we dismiss that portion of

the petition for review. We have jurisdiction under 8 U.S.C. § 1252(a) to review

the decision denying the application for restriction on removal. See Cruz-Funez

v. Gonzales, 406 F.3d 1187, 1188 (10th Cir. 2005). As explained below, because

we conclude that the BIA did not err in holding that there is no statutory basis for

Mr. Haimour’s request for such relief, we deny the petition for review.

                                         I.

       The facts in this case are undisputed. Mr. Haimour entered the United

States in November 1999 and overstayed his six-month non-immigrant visitor’s

visa. He was served with a notice to appear in August 2002; removal proceedings

commenced in early September 2002. Later that same month, he allegedly

married a United States citizen, who apparently filed a petition for adjustment of

status on Mr. Haimour’s behalf in November 2002. See R. at 282. The putative

wife died, however, before supplying evidence to support Mr. Haimour’s claim of

a valid marriage and before the petition was adjudicated. The petition for

adjustment of status was withdrawn on March 26, 2003. Id. at 281. Mr. Haimour




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subsequently filed an application for asylum and for restriction on removal on

June 3, 2003.

      The basis for Mr. Haimour’s application is that he cannot return to Jordan

because, while married to his first wife and living in Jordan, he committed

adultery with another Muslim woman in 1996-97, and he now fears for his life.

Mr. Haimour asserts that his paramour is a member of the Abu Al-Fadel family,

and was betrothed to her cousin. Mr. Haimour testified that his paramour’s fiancé

attacked him in 1997 after discovering the affair, and that attempts to peacefully

settle the matter with the Abu Al-Fadel family had been fruitless. He claimed that

the family has vowed to kill him, and that he will not be protected by the

Jordanian government because Jordan recognizes “honor killings” as a defense to

the murder of women who have engaged in an adulterous relationship.

      After a hearing, the immigration judge (IJ) concluded that Mr. Haimour

was not eligible to apply for asylum because he did not file his application within

one year of entering the United States. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R.

§ 208.4(a)(2)(ii) (providing that the one-year filing period commences either on

“the date of the alien’s last arrival in the United States or on April 1, 1997,

whichever is later”). The IJ denied the application for restriction on removal,

concluding that Mr. Haimour’s claim was based on a personal problem rather than

on a statutory ground for restriction on removal.


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      The Bureau of Immigration Appeals affirmed, expressly adopting the IJ’s

decision with additional discussion and analysis.




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                                         II.

      Under the asylum statute, we lack jurisdiction to review the BIA’s

determinations that Mr. Haimour’s asylum application was untimely and that

changed circumstances do not excuse his untimely filing. See 8 U.S.C.

§ 1158(a)(3) (providing that, “[n]o court shall have jurisdiction to review any

determination of the Attorney General under paragraph [§ 1158(a)(2)],” which

contains the exceptions to granting asylum); Tsevegmid v. Ashcroft, 336 F.3d

1231, 1234-35 (10th Cir. 2003) (dismissing in part because § 1158(a)(3) expressly

bars review regarding “whether the alien filed his application within a year of

entry or whether changed circumstances exist ‘which materially affect the

applicant’s eligibility for asylum or extraordinary circumstances relating to the

delay in filing an application’”).

      Because Mr. Haimour raises no constitutional claims, our lack of

jurisdiction is not affected by the recent passage of the REAL ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231, 310, in which Congress amended § 1252(a)(2)

to permit judicial review of constitutional claims and questions of law. See

8 U.S.C. § 1252(a)(2)(D). 1 Cf. Perales-Cumpean v. Gonzales, 429 F.3d 977,


1
       “The new subparagraph was made applicable ‘to cases in which the final
administrative order of removal, deportation, or exclusion was issued before, on,
or after the date of enactment’ of the Act. Real ID Act § 106(b).”
Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 n.4 (10th Cir. 2005).
                                                                     (continued...)

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982-83 & n.4 (10th Cir. 2005) (holding that “the Real ID Act does not provide

this court with jurisdiction to review the agency’s [discretionary] determinations

on the ‘extreme cruelty’ and credibility issues” raised in a cancellation of removal

petition brought under 8 U.S.C. § 1229b(b)(2) because Congress specifically

stripped courts of jurisdiction to review such discretionary decisions). We

therefore dismiss for lack of jurisdiction the challenge to the denial of

Mr. Haimour’s application for asylum.

                                         III.

         Because his removal proceedings commenced after April 1, 1997,

Mr. Haimour’s petition for review challenging the denial of restriction on removal

is governed by the permanent rules of the Illegal Immigration Reform and

Immigrant Responsibility Act. See Tsevegmid, 336 F.3d at 1234 n.3. To obtain

restriction on removal to Jordan, Mr. Haimour had to demonstrate that his “life or

freedom would be threatened in [Jordan] because of [his] race, religion,

nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(A) (emphasis added); see also 8 C.F.R. § 1208.16(b). He

had to show that “it is more likely than not that [he] would be subject to

persecution on one of the specified grounds” upon returning to Jordan. INS v.



1
    (...continued)


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Stevic, 467 U.S. 407, 429-30 (1984); Tulengkey v. Gonzales, 425 F.3d 1277, 1280

(10th Cir. 2005). If Mr. Haimour established a “clear probability of persecution”

because of one of the enumerated grounds upon return to Jordan, the Attorney

General would be prohibited from removing him to that country. See Stevic,

467 U.S. at 413, 422 n.15.

       Mr. Haimour based his eligibility for restriction on removal on his

assertion that he belongs to a persecuted “particular social group,” which he

defined as “‘a person who has had sexual relations outside marriage and thereby

brought dishonor upon the Abu Al-Fadel tribe or family.’” R. at 56. The IJ and

BIA disagreed that Mr. Haimour belongs to a protected social group, concluding

that he simply has a personal conflict with specific individuals that does not

qualify for relief under § 1231(b)(3)(A). Id. at 3, 56.

      “What constitutes a particular social group is a pure question of law that we

review de novo.” Cruz-Funez, 406 F.3d at 1191.

      The INA does not define the phrase “particular social group.” The
      term comes directly from the United Nations Protocol Relating to the
      Status of Refugees . . . [but][w]hen Congress ratified the Protocol on
      October 4, 1968, it did not shed any further light on the definition.
      The [BIA] has decided that a “particular social group” is “a group of
      persons all of whom share a common, immutable characteristic . . .
      that the members of the group either cannot change, or should not be
      required to change because it is fundamental to their individual
      identities or consciences.” In re Acosta, 19 I. & N. Dec. 211, 233-34
      (BIA 1985). The agency’s reasonable interpretation of a statute it
      administers is entitled to deference. But the Board left it to be


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      decided on a case-by-case basis what “particular kind of group
      characteristic . . . will qualify under this construction.” Acosta, 19
      I. & N. Dec. at 233.

             The courts are struggling to set the parameters for the
      definition of a “particular social group” in light of Acosta. The
      circuit courts are not in agreement on a test.

Id. (citations omitted). In In re Acosta, the BIA held that a taxi cooperative did

not constitute a “particular social group.” Since the drivers could change jobs,

the characteristic of being a taxi driver was not immutable. In re Acosta,

19 I. & N. Dec. 211, 234 (BIA 1985), overruled on other grounds by, In re

Mogharrabi, 19 I.&N. Dec. 439 (BIA 1987). Although we did not adopt a

definition of “particular social group” in Cruz-Funez, we held that the petitioners

there could not prevail under the BIA’s definition adopted in In re Acosta or

under any of the circuit courts’ tests because “[b]eing indebted to the same

creditor (unscrupulous or not) is not the kind of group characteristic that a person

either cannot change or should not be required to change.” Cruz-Funez, 403 F.3d

at 1191-92.

      A few months after our decision in Cruz-Funez, we adopted the BIA’s

definition of a “particular social group.” See Niang v. Gonzales, 422 F.3d 1187,

1198-99 (10th Cir. 2005). We held that, because the term “social group” was

ambiguous and the BIA’s interpretation in In re Acosta was a permissible

construction of the term, we were compelled to defer to that construction. Id. at


                                         -8-
1199. Accordingly, applying the BIA’s definition, we held in Niang that sexually

mutilated “female members of a tribe would be a social group [because] [b]oth

gender and tribal membership are immutable characteristics.” Id.

      Applying the BIA’s definition to the facts in this case, we conclude that

Mr. Haimour does not belong to a protected social group under the immigration

statutes. First, being an adulterer, like being a debtor, see Cruz-Funez, 406 F.3d

at 1192; a drug dealer, see Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir.

1992); a tatooed youth, Castellano-Chacon v. INS, 341 F.3d 533, 549 (6th Cir.

2003); or a taxi driver, In re Acosta, 19 I. & N. Dec. at 234, is not a protected

characteristic. Committing adultery is not “fundamental to [a group’s] individual

identities or consciences” and the immigration laws do not recognize a protected

right to commit adultery just as they do not recognize a protected right to

maintain a particular job. See In re Acosta, 19 I. & N. Dec. at 233.

       Second, Mr. Haimour has not established that he is a member of any

“group.” As Mr. Haimour admits, adulterous men are not necessarily subject to

death under Islamic law. In fact, Mr. Haimour testified that he had hoped that his

paramour’s family would agree to him taking her as his second wife or allowing

him to pay money for having impugned the family’s honor. Assuming his

testimony is credible, the Abu Al-Fadel family seeks only to punish him and not




                                          -9-
the universe of men who commit adultery with a Muslim in Jordan. His alleged

social “group” is thus limited to himself.

      And third, Mr. Haimour has failed to establish a nexus between the alleged

persecution and one of the five statutory grounds, which is a critical issue in

immigration law. For example, in INS v. Elias-Zacarias, 502 U.S. 478 (1992), the

Supreme Court held that, for an applicant to qualify for asylum protection,

persecution must be on account of the victim’s political opinion or other protected

characteristic, 2 not that of the persecutor. See id. at 482 (“if a fundamentalist

Moslem regime persecutes democrats, it is not engaging in persecution on account

of religion”). Here, Mr. Haimour, who states he is a nonpracticing Muslim, does

not fear persecution because he is or is not a Muslim; he fears it because the Abu

al-Fadel family wants to punish him for disgracing it. Further, Mr. Haimour

presented no evidence that Jordanian law protects those who injure or murder men




2
       An asylum applicant has the burden of proving his eligibility for asylum by
first establishing that he is a “refugee” as defined in 8 U.S.C. § 1101(a)(42). Yuk
v. Ashcroft, 355 F.3d 1222, 1232 (10th Cir. 2004). “The term ‘refugee’ means
(A) any person who is outside any country of such person’s nationality . . . who is
unable or unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion . . . .” § 1101(a)(42). Thus, the
grounds for restriction on removal are the same five protected grounds given in
the definition for “refugee.” See 8 U.S.C. § 1231(b)(3)(A).

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who commit adultery. The BIA did not err in concluding that Mr. Haimour is not

eligible for restriction on removal.

      The petition for review is DISMISSED in part for lack of subject matter

jurisdiction, and DENIED in part.

                                                  Entered for the Court



                                                  Michael R. Murphy
                                                  Circuit Judge




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