                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 27 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

NADER BEN GHALBA,                                No. 12-72383

              Petitioner,                        Agency No. A077-304-221

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted August 5, 2014**
                              Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

       Nader Ben Ghalba (“Ben Ghalba”), a native and citizen of Tunisia, petitions

for review of the Board of Immigration Appeals’ (“BIA”) denial of his applications

for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). Because we lack jurisdiction to review his asylum claim and he


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
has not demonstrated a clear probability of either persecution or torture, we dismiss

Ben Ghalba’s petition in part and deny his petition in part.

      The BIA’s conclusion that Ben Ghalba’s untimely asylum application was

not filed within a “reasonable period” after “changed circumstances” relied on

factual determinations that Ben Ghalba now disputes. For instance, he claims that

his religious transformation crossed the threshold necessary to constitute “changed

circumstances” in the Spring of 2003. The BIA, however, concluded that Ben

Ghalba had “already significantly increased the frequency of his mosque

attendance in 2001 and 2002.” Although “religious transformation” and mosque

attendance are different concepts, Ben Ghalba’s argument throughout these

proceedings has been that his outward displays of religious devotion (i.e., mosque

attendance and a conspicuous beard) are what will subject him to persecution.

Thus, this factual dispute is not merely an inconsistency. It is a fundamental

factual disagreement concerning when Ben Ghalba experienced the changed

circumstances that he argues renders his asylum application timely filed. Because

we have jurisdiction over the “changed circumstances” question only if Ben

Ghalba’s “petition is a question of the application of a statutory standard to

undisputed facts,” Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per

curiam) (emphasis added), we lack jurisdiction to review the BIA’s decision


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regarding the one-year ban, see Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir.

2011) (concluding that we have jurisdiction if the facts underlying a claim of

changed circumstances are not in dispute).

      Substantial evidence supports the BIA’s denial of Ben Ghalba’s withholding

of removal claim. While country reports state that men in Tunisia who are

perceived as Islamists have been subject to police harassment or detention, the

severity of the reported harm does not rise to the level of persecution. See

Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (holding that persecution is

“an extreme concept that does not include every sort of treatment our society

regards as offensive” (internal quotation marks and citation omitted)); Fisher v.

INS, 79 F.3d 955, 962 (9th Cir. 1996) (en banc) (holding that possible detention,

arrest, or imprisonment of applicant for not following Iran’s dress code was

common harassment, not persecution). Furthermore, Ben Ghalba has not

demonstrated a clear probability that he personally will be persecuted if returned to

Tunisia. See Ramadan, 479 F.3d at 658. Although he wears a beard and is

religiously devout, nothing in the record compels us to conclude that the Tunisian




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government will label Ben Ghalba an Islamist or terrorist, arrest him, and persecute

him.1

        Substantial evidence also supports the BIA’s denial of Ben Ghalba’s CAT

claim. Because “the BIA incorporate[d] the IJ’s reasons as its own, we treat the

IJ’s reasons as the BIA’s.” He v. Ashcroft, 328 F.3d 593, 595-96 (9th Cir. 2003).

While country reports state that “security forces tortured detainees to elicit

confessions and discourage resistance,” and that “[p]olitical prisoners, Islamists,

and persons detained on terrorism-related charges allegedly received harsher

treatment than other prisoners,” the IJ concluded that Ben Ghalba’s claim was

“speculative at best.” We agree. As with his withholding of removal claim, the

record does not compel us to conclude that it is more likely than not that Ben

Ghalba will be identified as a terrorist or an Islamist by the Tunisian government.



        1
        Furthermore, the collapse of former Tunisian President Ben Ali’s
government in January 2011 has likely further decreased the likelihood that Ben
Ghalba will face persecution or torture. See U.S. Dep’t of State, Tunisia: Country
Reports on Human Rights Practices (2011), available at
http://www.state.gov/documents/organization/186663.pdf (explaining that the
revolution has led to “an unprecedented opening for respect for human rights in the
country.”). Generally, our review is limited to the administrative record, but we
may review out-of-record State Department reports not available at the time the
BIA made its decision. See Gafoor v. INS, 231 F.3d 645, 655-56 (9th Cir. 2000),
superceded by statute on other grounds, REAL ID Act of 2005, Pub. L. No. 109-
13, div. B, § 101(h)(2), 119 Stat. 231, 305 (2005), as stated in Parussimova v.
Mukasey, 555 F.3d 734, 740 (9th Cir. 2009).

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See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009). While the Los

Angeles Times article mentions Ben Ghalba’s arrest for selling counterfeit goods

in the context of a terrorism investigation in Los Angeles, it does not identify him

as a terrorist and he has never labeled himself as such. Thus, substantial evidence

supports the BIA’s determination that Ben Ghalba failed to establish eligibility for

CAT relief. See 8 C.F.R. § 1208.16(c).

      PETITION DISMISSED IN PART; DENIED IN PART.




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                                                                               FILED
Ghalba v. Holder, No. 12-72383                                                 AUG 27 2014
REINHARDT, Circuit Judge, concurring:                                       MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

I concur in the holding of the disposition with respect to petitioner’s application for

withholding of removal and for relief under the Convention Against Torture, but I

would deny rather than dismiss his application for asylum.




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