                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 13 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ALIREZA ABRISHAMCHI,                             No. 07-71351

              Petitioner,                        Agency No. A073-971-872

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

              Respondent.



ALIREZA ABRISHAMCHI,                             No. 08-73780

              Petitioner,                        Agency No. A073-971-872

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                      Argued and Submitted August 31, 2011
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                         -2-

Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

      Alireza Abrishamchi, a native and citizen of Iran, petitions for review of the

Board of Immigration Appeals’s order dismissing his appeal from an Immigration

Judge’s decision denying his application for adjustment of status, asylum,

withholding of removal, and protection under the Convention Against Torture. He

separately petitions for review of the BIA’s denial of his motion to reopen. We

have jurisdiction under 8 U.S.C. § 1252. In No. 07-71351, we deny the petition in

part and grant it in part. In No. 08-73780, we dismiss the petition as moot.

I.    No. 07-71351

      We deny the petition as to adjustment of status. Abrishamchi is ineligible

for adjustment of status because he entered the country on a K-1 visa and failed to

marry his petitioning fiancée within ninety days of admission. See Kalal v.

Gonzales, 402 F.3d 948, 951 (9th Cir. 2005). The BIA did not err in affirming the

IJ’s denial of Abrishamchi’s application for adjustment of status.

      We also deny the petition as to asylum. In the absence of disputed facts, we

have jurisdiction to review the denial of Abrishamchi’s asylum application as time-

barred. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)(per curiam);

see also Taslimi v. Holder, 590 F.3d 981, 986 (9th Cir. 2010). Substantial

evidence supports the IJ’s finding, affirmed by the BIA, that Abrishamchi failed to
                                          -3-

file his asylum application within a reasonable period given his “changed

circumstances,” i.e., his decision to leave Islam and begin the process of converting

to Catholicism. Abrishamchi does not argue that the delay between his decision to

convert and the filing of his application—a delay of at least five months—was

reasonable. He simply asserts that the IJ should have found the application to be

timely because it was filed within one year of his decision to convert. But the

regulations allowing an alien to file a late asylum application because of “changed

circumstances” do not provide that the application is timely so long as it is filed

within one year of an applicant’s internalized decision to change his personal

circumstances; instead, the applicant must file “within a reasonable period given

[his] ‘changed circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). The record does not

compel the conclusion that Abrishamchi filed his asylum application within a

reasonable period after he decided to convert.

      We grant the petition as to withholding of removal and CAT relief. The BIA

failed to address Abrishamchi’s claim that he could face death for committing

apostasy if he returns to Iran. This is a different issue than whether he would face

persecution or torture for becoming a Catholic. We remand to the BIA to

determine in the first instance whether Abrishamchi established that it is more

likely than not that he would suffer persecution or torture on the basis of his
                                           -4-

renouncement of Islam alone, even in the absence of a completed conversion to

Catholicism. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009)

(remanding where BIA failed to address petitioner’s argument); see also INS v.

Ventura, 537 U.S. 12, 16–17 (2002) (per curiam).

II.     No. 08-73780

        Because we grant in part the petition in No. 07-71351, we dismiss

Abrishamchi’s petition for review of the BIA’s denial of his motion to reopen as

moot.

        In light of our holdings, we deny as moot Respondent’s Motion to Strike,

filed May 6, 2008, and Petitioner’s Motion to Take Judicial Notice, filed May 16,

2008.

        Each party shall bear its own costs.

        DENIED IN PART; GRANTED IN PART and REMANDED (No. 07-

71351).

        DISMISSED (No. 08-73780).
