     Case: 15-60416      Document: 00513819609         Page: 1    Date Filed: 01/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-60416                                  FILED
                                  Summary Calendar                          January 3, 2017
                                                                             Lyle W. Cayce
OSWALD COAMS BARAKE,
                                                                                  Clerk


                                                 Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A096 035 354


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Oswald Coams Barake, a native and citizen of Kenya, petitions for
review of the Board of Immigration Appeals’s (BIA’s) dismissal of his appeal of
the Immigration Judge’s (IJ’s) decision denying his application for asylum, for
withholding of removal, and for relief under the Convention Against Torture
(CAT). He contends that the IJ and BIA (1) legally erred when analyzing his
excuse for his untimely asylum application, and (2) ignored substantial


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60416

evidence establishing a probability that he will be persecuted or tortured if he
is removed to Kenya.
       We review the order of the BIA and will consider the underlying decision
of the IJ only if it had some impact upon the BIA’s decision. Orellana-Monson
v. Holder, 685 F.3d 511, 517 (5th Cir. 2012). Our review of rulings of law is de
novo, and we review findings of fact for substantial evidence. Garcia v. Holder,
756 F.3d 885, 890 (5th Cir. 2014).
       The BIA concluded that Barake did not timely file his application for
asylum; we have jurisdiction to review a timeliness determination if it “turns
on a constitutional claim or a question of law,” but not if it is “based on findings
of fact.” Zhu v. Gonzales, 493 F.3d 588, 594-95 (5th Cir. 2007). To the extent
that Barake argues that the BIA committed legal error by conflating “the
existence of changed circumstances which materially affect the applicant’s
eligibility for asylum” with “extraordinary circumstances relating to the delay,”
we are unpersuaded. See Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir.
2007); 8 U.S.C. § 1158(a)(2)(D). 1 The record reflects that the BIA considered
and rejected both potential exceptions for Barake’s untimely asylum
application. Accordingly, Barake’s petition is denied to the extent that it can
be construed as raising a question of law and dismissed to the extent that it
can be construed as challenging the BIA’s factual timeliness determination.
See Zhu, 493 F.3d at 594-95.
      To establish entitlement to withholding of removal to a country, an alien
must demonstrate “a clear probability that his life or freedom would be
threatened in that country because of the alien’s race, religion, nationality,

      1  We pretermit the Respondent’s jurisdictional argument that Barake did not exhaust
administrative remedies as to this issue because the issue lacks merit even if Barake
sufficiently presented it to the BIA. See Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 327-28
(5th Cir. 2004) (pretermitting the question of this Court’s jurisdiction under 8 U.S.C.
§ 1252(a)(2)(C) because relief was properly denied on the merits).


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                                 No. 15-60416

membership in a particular social group, or political opinion.” Garcia, 756 F.3d
at 890. To establish entitlement to relief under the CAT, an alien must satisfy
“a two part analysis—first, is it more likely than not that the alien will be
tortured upon return to his homeland; and second, is there sufficient state
action involved in that torture.” Id. at 891.
       We conclude that substantial record evidence supports the BIA’s
determination that Barake did not establish his entitlement to either
withholding of removal or relief under the CAT. See Garcia, 756 F.3d at 890-
91.    The evidence does not compel the conclusion that political violence
previously experienced by Barake’s family is likely to recur or that Barake
himself will more likely than not be subject to persecution or torture under the
present conditions in Kenya. See id.
       The petition for review is DISMISSED IN PART for lack of jurisdiction
and DENIED IN PART.




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