     Case: 11-60500     Document: 00511823682         Page: 1     Date Filed: 04/17/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 17, 2012
                                     No. 11-60500
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

PRADEEP KUMAR RAWAL,

                                                  Petitioner,

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent.


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A079 556 066


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Pradeep Kumar Rawal, a native and citizen of Nepal, was ordered
removed from the United States after he did not appear at his removal hearing,
but he successfully moved to have his proceedings reopened. Four months later,
he filed an application for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). He claimed that if returned to Nepal,
he would be subject to persecution and torture at the hands of Maoists because
he belonged to a rival political party and had rebuffed the Maoists’ requests to

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-60500

join their ranks. He also explained that he had been kidnaped and beaten by the
Maoists and that the Maoists had bombed his family’s home. The immigration
judge denied relief, and the BIA dismissed his appeal, determining that Rawal
filed his asylum application after the deadline, none of the exceptions to to the
deadline applied, and Rawal had not shown entitlement to relief. Rawal now
petitions this court for review. Because the BIA made its own determination and
did not adopt the reasoning of the immigration judge, we review only the BIA’s
decision. See Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
      Rawal contends that the BIA should have excused him from the one-year
asylum application filing deadline. An alien seeking asylum must file an
application within one year after his arrival in the United States unless he
demonstrates “changed circumstances which materially affect [his] eligibility for
asylum or extraordinary circumstances relating to the delay in filing an
application.” 8 U.S.C. § 1158(a)(2)(B), (D). We lack jurisdiction to review a
decision that an asylum application is untimely if the decision is based on the
BIA’s assessment of the facts and circumstances relevant to the issue of
timeliness, though we retain jurisdiction over constitutional claims and
questions of law. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Zhu v. Gonzales, 493 F.3d
588, 594-95 (5th Cir. 2007). We review the BIA’s legal determinations de novo.
Zhu, 493 F.3d at 594.
      According to Rawal, the BIA violated his right to procedural due process
when it used too high a legal standard to determine whether extraordinary
circumstances justified his late filing. To the extent that this argument raises
a legal or constitutional question that we have jurisdiction to decide, see
§ 1252(a)(2)(D); Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010) (determining
that this court has jurisdiction to determine whether the BIA used the correct
legal standard on the issue of eligibility for CAT relief), he cannot succeed
because, contrary to his contention, nothing in the BIA’s decision suggests that
it used an incorrect standard.

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                                  No. 11-60500

      Next, Rawal contends that the BIA made a legal error when it determined
that he could have filed his asylum application earlier than he did—specifically,
at the time he filed his motion to reopen proceedings—arguing that he was
required to wait until after his motion to reopen was granted. This argument is
belied by regulations regarding filing of asylum applications, which in some
cases require, and at the very least permit, the application to be filed at the
same time as a motion to reopen. See 8 C.F.R. §§ 1003.23(b)(3), 1208.4(b)(3)(ii).
Thus, the BIA committed no legal error. To the extent that Rawal wishes us to
revisit the facts before the BIA to determine whether they sufficiently proved
that extraordinary circumstances warranted late filing, we may not do so
because we lack jurisdiction to review the BIA’s factual findings regarding the
timeliness of an asylum application. See Arif v. Mukasey, 509 F.3d 677, 680 (5th
Cir. 2007).
      Rawal also contends that his arrest three months after arriving in the
United States combined with his deportation proceedings amounted to
“extraordinary circumstances” excusing his delay and that his late filing should
not doom his application because, he says, he presented evidence that conditions
in Nepal had changed for the worse since his departure. Although in his brief
to the BIA Rawal referenced articles discussing more recent activities of the
Maoists, he relied on the articles as support for his claim that he suffered past
persecution and did not contend that changed conditions in Nepal excused the
late filing of his asylum application. Instead, he argued that the delay was
justified solely on the ground that he was unable to file the application before his
motion to reopen was granted. Accordingly, he failed to exhaust issues relating
to his arrest and the purported changed country conditions in Nepal, and this
court lacks jurisdiction to address them now. See Omari v. Holder, 562 F.3d 314,
318-19 (5th Cir. 2009).
      Next, Rawal argues that the BIA erred in declining to grant him
withholding of removal on the grounds that he suffered past persecution and will

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                                   No. 11-60500

suffer future persecution by Maoists if returned to Nepal. We review the BIA’s
factual findings, including the finding whether an alien is entitled to
withholding of removal, for substantial evidence and will reverse them only if
the record compels a different finding. Zhu, 493 F.3d at 594; Hongyok v.
Gonzales, 492 F.3d 547, 550 (5th Cir. 2007). An alien is entitled to withholding
of removal if he proves that it is more likely than not that, if deported, he will be
persecuted on the basis of, as relevant here, his political opinion. 8 U.S.C.
§ 1231(b)(3)(A); Arif, 509 F.3d at 680; Hongyok, 492 F.3d at 550. When an alien
alleges past persecution at the hands of a nongovernmental organization, he
must show that the government is unwilling or unable to control the
organization. Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006).
      The record does not compel a conclusion that Rawal will more likely than
not suffer persecution if returned to Nepal. The BIA based its decision on its
finding that the government was not unable or unwilling to control the Maoists
as evidenced by law enforcement’s proactive response when Rawal was attacked
and his family’s home bombed and by the establishment by the government of
an organization to assist victims of Maoist violence. It also determined that
Rawal’s father, an active member of a political party opposed to the Maoists,
continues to live in Nepal unharmed. Rawal has not established that these
findings were not supported by substantial evidence, especially given that they
were based on his own testimony. To the extent that Rawal argues that the
Maoists have recently taken over the Nepalese government and have thus
become the government (rather than simply a political party separate from the
government), he did not raise this argument before the BIA, and thus this court
lacks jurisdiction to consider it. See Omari, 562 F.3d at 318-19.
      Finally, Rawal has not argued on appeal that he is entitled to protection
under the CAT. Accordingly, he has abandoned this issue, and we decline to
address it. See Zhu, 493 F.3d at 593 n.10.
      The petition for review is DENIED.

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