     Case: 12-60170         Document: 00512248339          Page: 1    Date Filed: 05/21/2013




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

                                                                               FILED
                                                                              May 21, 2013
                                         No. 12–60170
                                                                             Lyle W. Cayce
                                                                                  Clerk
ANDRE LUIS BARBOSA-FERREIRA,

                                                     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. A089 964 832


Before JONES and CLEMENT, Circuit Judges, and KAZEN*, District Judge.
KAZEN, District Judge:**
       The Board of Immigration Appeals (“BIA”) affirmed a decision by an
Immigration Judge (“IJ”) finding that the Petitioner’s request for asylum was
untimely and that he was not entitled to withholding of removal under 8
U.S.C. § 1231 or relief under the Convention Against Torture (“CAT”).
Petitioner now seeks review from this Court.



       *
           District Judge of the Southern District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12–60170

                              I. BACKGROUND
      Petitioner Andre Luis Barbosa Ferreira (“Ferreira”), a native of Brazil
born in 1979, entered the United States on June 9, 2001, on a student visa. He
did not maintain his student status beyond 2002, but remained in the United
States. In 2009, the Department of Homeland Security issued Ferreira a Notice
to Appear, charging that he was removable as an alien who had failed to
maintain or comply with the conditions of his nonimmigrant status. Ferreira
conceded his removability, but applied for asylum and sought relief through
withholding of removal and protection under the CAT.
      At his hearing in front of the IJ, Ferreira testified that as an openly gay
man, he feared persecution and torture if he returned to Brazil. He stated that
he had not been physically harmed before, but that in 2001, he and a friend were
stopped by police after leaving a bar in a gay neighborhood in his hometown of
Patos de Minas. The police threatened and harassed Ferreira and assaulted his
friend. He further testified that in 2005, after he had been in the United States
for several years, he began living an openly gay lifestyle. Shortly before his
arrest in 2009, he revealed his homosexuality to his brother, who was living in
Louisiana. Ferreira also submitted into evidence the 2009 US Department of
State Human Rights Report for Brazil (“Report”) and news articles discussing
the difficulties homosexuals face in Brazil.
      The IJ denied Ferreira’s application for asylum, finding it untimely
because he did not apply within one year of his entry into the United States and
had not shown changed or extraordinary circumstances that excused his delay.
The IJ also determined that Ferreira was ineligible for withholding of removal
because he failed to establish that he faced a clear probability of persecution
upon return to Brazil, and that he was ineligible for relief under the CAT
because he had not shown that he was likely to be tortured in Brazil. Ferreira
appealed to the BIA, which agreed with the IJ’s findings and dismissed the
appeal.

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                             II. Standard of Review
      With respect to the asylum claim, as we explain below, we cannot review
it and we only have jurisdiction to review the determinations regarding
withholding of removal and the CAT. The BIA’s conclusion that an alien is not
eligible for withholding of removal or relief under the CAT is a factual finding
that we review for substantial evidence. Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006). “Under the substantial evidence standard, reversal is improper
unless we decide not only that the evidence supports a contrary conclusion, but
also that the evidence compels it.” Id. (internal quotation marks and citation
omitted). This court reviews decisions made by the BIA and only considers the
rulings and findings of the IJ if they impact the BIA’s decision. Efe v. Ashcroft,
293 F.3d 899, 903 (5th Cir. 2002). Since the BIA agreed with the IJ’s findings
and conclusions, the IJ’s findings are reviewable. Id.
                               III. DISCUSSION
                                   A. Asylum
      An alien seeking asylum must file an application within one year after his
arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The one-year deadline
may be excused however, “if the alien demonstrates . . . either the existence of
changed circumstances which materially affect the applicant's eligibility for
asylum or extraordinary circumstances relating to the delay in filing an
application.” Id. § 1158(a)(2)(D). We lack jurisdiction to review determinations
of timeliness that are based on the facts and circumstances of a case, although
we do have jurisdiction over determinations based on constitutional claims or
questions of law. Id. §§ 1158(a)(3), 1252(a)(2)(D); Zhu v. Gonzales, 493 F.3d 588,
594-95 (5th Cir. 2007); Nakimbugwe v. Gonzales, 475 F.3d 281, 284 n.1 (5th Cir.
2007). In this case, the underlying determination of timeliness turned entirely
on questions of fact. The BIA upheld the IJ’s determination that Ferreira’s
unfamiliarity with the English language and revelation of his homosexuality to
his brother did not constitute extraordinary or changed circumstances that

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excused his untimely filing. Therefore, we have no jurisdiction to review the
asylum claim.
                           B. Withholding of Removal
      An applicant is eligible for withholding of removal if he or she
demonstrates a clear probability of persecution upon return, which means that
it is “more likely than not that the applicant’s life or freedom would be
threatened by persecution on account of either his race, religion, nationality,
membership in a particular social group, or political opinion.” Roy v. Ashcroft,
389 F.3d 132, 138 (5th Cir. 2004). A clear probability of persecution can be
established through evidence of either a past or future threat to life or freedom.
8 C.F.R. § 1208.16(b)(1)–(2). Discrimination, harassment, and threats are not
significant enough harm to be considered persecution. See Eduard v. Ashcroft,
379 F.3d 182, 188 (5th Cir. 2004).
      Ferreira argues that he established past persecution based on the incident
when, after leaving a bar frequented by gay men, police officers detained him
and a friend and physically assaulted the friend. Substantial evidence supports
the determination by the BIA and IJ that this single incident, in which Ferreira
was threatened and harassed but not injured, did not constitute persecution.
      Nonetheless, an alien who has not suffered past persecution can
demonstrate a future threat to life or freedom by either showing that he will be
singled out for persecution or that a pattern or practice of persecution of a group
of persons similarly situated to the applicant exists. 8 C.F.R. § 1208.16(b)(2)(i)-
(ii). Ferreira has neither shown that he will be singled out for persecution nor
that a pattern or practice of persecution against homosexual men exists in
Brazil. Ferreira argues that the IJ failed to consider meaningfully evidence
beyond the Report, specifically news articles which showed that more men are
killed due to their sexual orientation in Brazil than anywhere else in the world.
This claim is without merit. In his decision, the IJ discussed the reported
number of killings of gay men in Brazil and concluded that the chance of

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Ferreira actually being killed for his homosexuality is speculative. As the IJ
noted, the Report indicates that a gay rights NGO received 115 reports of
killings based on sexual orientation and gender identity from January to
September 2009. The Report points out that this was a decrease from 188
during the same period in the prior year, and also notes that Brazil has a
population of 192 million. The IJ and BIA concluded that killings are rare and
homophobic sentiment tends to manifest itself in petty types of harassment, such
as ridicule and disapproval.
      Additionally, the Report and news articles submitted by Ferreira contain
evidence of the growth of movements, including many sponsored by the
government, to promote non-discrimination and protect the rights of
homosexuals. Many states and municipalities bar discrimination, and in 2008,
then-President Luiz Inacio Lula da Silva addressed the country’s first national
gay rights conference. According to one of the news articles Ferreira submitted,
São Paulo hosts what is thought to be the largest gay pride demonstration in the
world, reaching an estimated attendance of three million people in 2008. The
evidence in the record does not compel reversal.
                        C. Convention Against Torture
      A claim under the CAT is a separate claim from asylum or withholding of
removal. Roy, 389 F.3d at 139. “To obtain relief under the [CAT], the alien . .
. must show a likelihood of torture upon return to his homeland.” Tamara-
Gomez v. Gonzales, 447 F.3d 343, 350 (5th Cir. 2006). “Torture is defined as any
act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person . . . by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 208.18(a)(1). “Torture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel, inhuman[,] or
degrading treatment or punishment that do not amount to torture.” Id. §
208.18(a)(2).   The IJ found that Ferreira is likely to face ridicule and

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discrimination if he returns to Brazil, but that this falls well short of torture.
The evidence in the record does not compel a contrary conclusion.
                              IV. CONCLUSION
      For the foregoing reasons, we lack jurisdiction to review Ferreira’s claim
for asylum, and we find that the BIA’s determination that he is ineligible for
withholding of removal and relief under the CAT is supported by substantial
evidence. The petition for review is DENIED.




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