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

                                                FILED
                                                                 June 23, 2009
                               No. 08-60601
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

AMOR YACOUBI, also known as Omar Kachani, also known as Omar Yakoubi,
also known as Omar Gacob, also known as Amor Yakoubi, also known as Amor
Gacob, also known as Larbi A Yacoubi

                                           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. A97 538 499


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Amor Yacoubi, a citizen of Tunisia, has filed a petition for review of the
Board of Immigration Appeals’ (BIA) dismissal of his appeal from the decision
of the immigration judge (IJ) denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT), in which
Yacoubi contended that he had been persecuted because of his homosexuality.


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                      No. 08-60601

      As to his application for asylum, the BIA and IJ found that Yacoubi had
not demonstrated by clear and convincing evidence that the application was filed
within one year after the date of his arrival in the United States, and further
that he had not shown extraordinary circumstances causing a failure to meet
that one-year deadline. See 8 U.S.C. § 1158(a)(2)(B), (D). As to the other forms
of relief sought, the IJ assumed Yacoubi to be credible and accepted his
testimony as true. The IJ, however, determined that Yacoubi had failed to carry
his burden of showing that he had been the victim of past persecution or that it
was more likely than not he would be subject to persecution or torture upon his
return to Tunisia.
      In general, this court reviews only the decisions of the BIA, except where,
as in the instant case, the underlying decision of the IJ influenced the
determination of the BIA, in which case the IJ’s decision may be considered.
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). “[T]his [c]ourt
must affirm the decision if there is no error of law and if reasonable, substantial,
and probative evidence on the record, considered as a whole, supports the
decision’s factual findings.” Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003).
Under this standard, reversal is improper unless this court decides “not only
that the evidence supports a contrary conclusion, but [also] that the evidence
compels it.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (internal
quotation marks and citation omitted) (emphasis in original). The petitioner
bears the burden of proving the compelling nature of the evidence. Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994).           This standard is applied in reviewing
determinations regarding asylum, withholding of removal, and relief under the
CAT. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
      Yacoubi contends that the IJ erred in determining that he was ineligible
for withholding or protection under the CAT. He does not challenge the IJ’s
determination that he is statutorily ineligible for asylum due to the untimeliness
of his application for such relief.

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      Yacoubi’s claims fail as the substantial evidence does not compel the
conclusion that he was persecuted or had a well-founded fear of persecution
because he is homosexual. See Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).
The record reflects that Yacoubi once was beaten by police officers, resulting in
injuries to his wrist for which he sought medical treatment, and he once had
rocks thrown at him by members of his mosque, resulting in some cuts that he
treated at home. He also was called names by the same members of his mosque
and by his classmates and teachers. Further, there is no evidence that Yacoubi
was ever arrested, charged, or convicted of any crime for any homosexual
conduct or that the Tunisian government had any persistent or continuing
interest in him. Yacoubi conceded that after the police beating and the rock-
throwing incident, he remained in Tunisia without incident for nearly a year.
The facts here are not sufficient to compel support for Yacoubi’s position that he
suffered past persecution. See, e.g., Ozdemir v. INS, 46 F.3d 6, 7 (5th Cir. 1994);
Fleurinor v. INS, 585 F.2d 129, 132 (5th Cir. 1978); see also Eduard v. Ashcroft,
379 F.3d 182, 188 (5th Cir. 2004).      Absent evidence that he suffered past
persecution, Yacoubi is not entitled to a presumption that he would suffer
persecution in the future if removed to Tunisia. See 8 C.F.R. § 208.16(b)(1)(i).
      Furthermore, Yacoubi failed to present any specific, detailed facts that,
more likely than not, his life or freedom would be threatened by persecution on
the basis of his homosexuality, or he would be tortured if removed to Tunisia.
See 8 C.F.R. § 208.16(b)(2), (c)(2); see also Efe v. Ashcroft, 293 F.3d 899, 906-07
(5th Cir. 2002). Thus, Yacoubi cannot meet the more stringent standard for
withholding of removal or relief under the CAT. See Eduard, 379 F.3d at 186.
      Yacoubi also contends that he was denied a fair hearing as a result of the
IJ’s refusal to continue the merits hearing so that he could have counsel and a
translator present. Yacoubi did not raise before the BIA any argument that he
was denied a fair hearing. Nor did he argue to the BIA that his case should be
remanded so that he could be assisted by counsel or a translator. This issue

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raises a procedural error that could have been corrected by the BIA.         See
Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001). Thus, Yacoubi has not
exhausted his administrative remedies, and we do not have jurisdiction to
consider this ground. See 8 U.S.C. § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001). Accordingly, this part of the petition for review should
be dismissed for lack of jurisdiction. See Alwan v. Ashcroft, 388 F.3d 507, 515
(5th Cir. 2004).
      Yacoubi also challenges the BIA’s denial of his motion to remand. A
motion to remand for the consideration of new evidence is considered to be the
same in substance as a motion to reopen removal proceedings and is reviewed
under the standards applicable to motions to reopen. Wang, 260 F.3d at 451-52.
We review the BIA’s denial of a motion to reopen “under a highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). That discretion will not be disturbed unless it is arbitrary, capricious,
racially invidious, or utterly without evidentiary foundation. Mai v. Gonzales,
473 F.3d 162, 164 (5th Cir. 2006).
      Yacoubi points to no evidence in the record that rebuts the BIA’s finding.
Rather, he argues that based upon a failure to make payment, his attorney
withheld certain letters written by his mother and a friend. Yacoubi, however,
fails to offer any explanation why he could not obtain copies of those letters
directly via mail prior to the hearing before the IJ or why those witnesses could
not be present at the hearing. He also fails to show that the evidence was
material. Thus, Yacoubi has not shown that the BIA abused its discretion by
denying his motion to remand. See 8 C.F.R. § 1003.2(c)(1); Mai, 473 F.3d at 164.
      Accordingly, Yacoubi’s petition for review is DENIED in part and
DISMISSED in part for lack of jurisdiction.




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