                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             March 23, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ____________________                      Clerk

                              No. 05-60465

                         Summary Calendar
                       ____________________


     ANAND BABO; HAMAN BABO

                Petitioners

          v.

     ALBERTO R GONZALES, U S ATTORNEY GENERAL

                Respondent


_________________________________________________________________

              Petition for Review of an Order of the
                   Board of Immigration Appeals,
             BIA No. A79 556 429; BIA No. A79 556 431
_________________________________________________________________

Before KING, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Anand Babo and his son, Haman Babo, petition this court for

review of an order from the Board of Immigration Appeals (“BIA”)

affirming the decision of the Immigration Judge (“IJ”) to deny

their applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).        By

     *
        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that this opinion should not be published and is not precedent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.

                                  -1-
separate motion carried with the case, the Babos contend, in the

alternative, that this case should be transferred to the district

court as a habeas corpus petition pursuant to 28 U.S.C. § 2241 if

this court determines that it lacks jurisdiction over the appeal.

For the following reasons, we DISMISS the petition for review

insofar as it seeks review of the Babos’ asylum claim and DENY

the balance of the petition for review and the accompanying

motion.

               I.   FACTUAL AND PROCEDURAL BACKGROUND

     Petitioners Anand Babo and his son, Haman Babo, were both

born in Karachi, Pakistan.   They entered the United States

together as temporary visitors on July 21, 2000, and were

authorized to remain only until January 19, 2001.   Both men

remained in the United States past that date without explicit

authorization from the Immigration and Naturalization Service

(“INS”).1   The DHS issued separate Notices to Appear on March 10,

2003 and filed with the immigration court in Dallas, Texas, on

April 1, 2003, to commence removal proceedings against the Babos


     1
        As of March 1, 2003, the INS’s administrative, service,
and enforcement functions were transferred from the Department of
Justice to the new Department of Homeland Security (“DHS”). See
Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451,
471, 116 Stat. 2135 (2002). The Bureau of Immigration and
Customs Enforcement (“BICE”) in the DHS assumed the INS’s
detention, removal, enforcement, and investigative functions.
See Peters v. Ashcroft, 383 F.3d 302, 304 n.1 (5th Cir. 2004).
Because the removal proceedings in this case began after the
reorganization, we will henceforth refer to the current agencies
in this opinion for the sake of accuracy.

                                 -2-
as nonimmigrants that remained in the United States for a time

longer than permitted under section 237(a)(1)(B) of the

Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1227(a)(1)(B).2   The Babos filed their asylum applications in

open court on October 9, 2003, long after the one-year limitation

on filing under section 208(a)(2)(B) of the INA, 8 U.S.C.

§ 1158(a)(2)(B), had lapsed.

     On January 5, 2004, the IJ conducted a consolidated removal

hearing and issued a written order and decision that (1) denied

the petitioners’ requests for asylum relief as time-barred and

(2) rejected the petitioners’ claims for withholding of removal

and protection under the CAT.   Notwithstanding Anand Babo’s

generalized assertions during his testimony that the situation

had worsened since leaving Pakistan in July of 2000, the IJ

determined that the evidence in the record demonstrated that the

basis of his fear of mistreatment if he returned to Pakistan

already existed at the time he arrived in July of 2000.   Thus,

the IJ found that the petitioners’ were bound by the one-year

limitation on filing.

     The IJ next addressed the withholding of removal and CAT

claims.   The IJ acknowledged that, as practicing Hindus, the

Babos are indeed a religious minority in their Muslim-dominated


     2
        The petitioners conceded removability on this ground and
petition this court to review only the BIA’s affirmance of the
IJ’s denial of asylum, withholding of removal, and CAT relief.

                                -3-
native country of Pakistan.    When tensions escalated between

Hindus and Muslims in Pakistan following the destruction of the

Babri Mosque in December of 1992, Anand Babo testified that he

was particularly targeted and threatened because he was

purportedly the secretary of a Hindu graveyard that certain

Muslim shopkeepers were encroaching upon.    Although Anand Babo

testified that he was shot at by these Muslim individuals in 2000

and allegedly reported the incident to the authorities,3 the IJ

noted that this incident was neither included in his handwritten

affidavit nor corroborated by any documentary evidence in the

record.4    Moreover, the IJ also found a discrepancy with a

document that supposedly certified that Anand Babo was an active

member in the Hindu community and joint secretary of a particular

Hindu organization.

     After carefully reviewing the evidence, the IJ determined

that, even putting aside some of his doubts about the credibility

of Anand Babo’s testimony, the alleged acts of persecution

against him seemed to have arisen in response to a real estate

dispute over the cemetery plot, rather than on account of his

religion.    Thus, the IJ found that the Babos had failed to


     3
        Anand Babo also testified that the police did not take
any specific action following his report.
     4
        Besides expressing a general familiarity with the Hindu-
Muslim conflict in Pakistan and a preference for continuing his
education in the United States, Haman Babo’s testimony largely
tracked that of his father.

                                 -4-
establish a clear probability of persecution on the basis of

religion if they returned to Pakistan and accordingly denied

their requests for withholding of removal.     The IJ similarly

rejected the CAT claims because the petitioners had failed to

demonstrate how the police were supposed to know who to arrest

based on the limited information from Anand Babo following the

alleged shooting incident in 2000.      Despite denying all requests

for protective relief, the IJ granted voluntary departure to the

Babos with specific instructions to leave the United States on or

before March 5, 2004.

     On April 29, 2005, the BIA adopted and affirmed the decision

of the IJ.   The Babos timely filed a petition for review of the

BIA’s decision.5

                           II.   DISCUSSION

     First, we lack jurisdiction to review the Babos’ asylum

claims because the BIA adopted the IJ’s conclusion that those

claims were time barred.    See 8 U.S.C. § 1158(a)(3) (“No court

shall have jurisdiction to review any determination of the

Attorney General under paragraph (2).”); see also Nugroho v.


     5
        A panel from this court denied the petitioners motion for
a stay of deportation on July 14, 2005. The BIA subsequently
denied the petitioners’ motion to reopen on July 21, 2005, and
further ordered that they would be barred from applying for
adjustment of status pursuant to section 240B(d) of the INA, 8
U.S.C. § 1229c(d). The petitioners have not challenged these
orders in the instant appeal, which would have otherwise been
consolidated with this appeal. See 8 U.S.C. § 1252(b)(6); Roy v.
Ashcroft, 389 F.3d 132, 136 n.3 (5th Cir. 2004).

                                  -5-
Gonzales, No. 04-60248, 2006 WL 319267, at *1 (5th Cir. Feb. 13,

2006) (citing Zhu v. Ashcroft, 382 F.3d 521, 527 (5th Cir.

2005)).   The IJ determined that the basis for Anand Babo’s fear

of persecution upon a return to Pakistan already existed when he

arrived in the United States in July of 2000.    Thus, the IJ

determined that the Babos failed to demonstrate “either the

existence of changed circumstances which materially affected

[their] eligibility for asylum or extraordinary circumstances

relating to the delay in filing” necessary to overcome the one-

year limitation.    8 U.S.C. § 1158(a)(2)(B),(D).   Accordingly,

this court must dismiss the petitioners’ asylum claims for lack

of jurisdiction.6

     We retain jurisdiction to review the withholding of removal

and CAT claims.7    See 8 U.S.C. § 1252; Roy, 389 F.3d at 137.

     6
        In their reply brief and accompanying motion to transfer,
the petitioners urge that this court has jurisdiction to consider
the timeliness of their asylum claim following the passage of the
REAL ID Act, Pub. L. 109-13, 119 Stat. 231 (May 11, 2005). See 8
U.S.C. § 1252(a)(2)(D) (providing for judicial review of
“constitutional claims or questions of law raised upon a petition
for review”). Following the passage of the REAL ID Act, however,
previous panels of this court have noted that this provision does
not preserve jurisdiction over an IJ’s determination of the
timeliness of an asylum application. See, e.g. Nugroho, 2006 WL
319267, at *1; Bregu v. Gonzales, No. 05-60697, 2006 WL 237949,
at *1 (5th Cir. Jan. 31, 2006); Maredia v. Gonzales, No. 04-
60847, 2005 WL 3505398, at *1 (5th Cir. Dec. 23, 2005) (“We
cannot review whether the petitioner’s application for asylum was
timely filed or whether an exception to the one-year filing
requirement applied.”).
     7
        Because we have jurisdiction to review the remaining
withholding of removal and CAT claims, we deny the petitioners’
motion to transfer the case to the district court as a habeas

                                 -6-
“Withholding of removal is a higher standard than asylum.”        Efe

v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).    The petitioners

must prove a “clear probability of persecution” based on their

religion or some other enumerated ground upon removal to

Pakistan.   INS v. Stevic, 467 U.S. 407, 413 (1984); see also 8

U.S.C. § 1231(b)(3)(A); Efe, 293 F.3d at 906.     We review the

BIA’s conclusion on such claims for substantial evidence.     See

Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).    Under substantial

evidence review, we will reverse the BIA only “when the evidence

is ‘so compelling that no reasonable fact finder could fail to

find’ the petitioner statutorily eligible for relief.”     Roy, 389

F.3d at 138 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84

(1992)).    Moreover, “[w]e cannot substitute our judgment for that

of the BIA or IJ with respect to the credibility of the witnesses

or ultimate factual findings based on credibility

determinations.”    Chun, 40 F.3d at 78; see also Efe, 293 F.3d at

903 (noting that courts afford “great deference to an immigration

judge’s decisions concerning an alien’s credibility”).

     As practicing Hindus, the Babos allegedly fear persecution

on the basis of their religion if removed to Pakistan, which

remains a predominantly Muslim country.   Given the lack of



corpus petition pursuant to 28 U.S.C. § 2241. See Rosales v.
Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736
(5th Cir. 2005) (discussing the effect of the REAL ID Act and
noting that this court is the “exclusive forum” for petitioners
to challenge removal orders).

                                 -7-
documentary evidence to support Anand Babo’s testimony about the

alleged shooting incident in 2000 and lingering questions over

the veracity of a particular piece of evidence, however, the IJ

drew an adverse credibility determination about the existence of

past persecution and concluded that the petitioners had failed to

demonstrate a clear probability of persecution on the basis of

their Hindu beliefs if removed to Pakistan.   The IJ also

determined that the harassment was at least partially motivated

by a real estate dispute over the cemetery land, rather than

simply animosity toward the Babos because they were Hindus.    Even

under a mixed motive analysis, the petitioners must still present

evidence “of such weight that it compels the fact-finder to

conclude that the applicant suffered past persecution or has a

well-founded fear of future persecution on account of a protected

ground.”   Girma v. INS, 283 F.3d 664, 668 (5th Cir. 2002)

(finding the BIA’s denial withholding of removal relief to be

consistent with a mixed motive analysis) (emphasis added).

Therefore, we conclude that the BIA’s affirmance of the IJ’s

decision to deny withholding of removal relief was supported by

substantial evidence in the record.

     Finally, we separately address the remaining CAT claims

because such claims are distinct “from the claims for asylum and

withholding of removal and should receive separate analytical

attention.”   Efe, 293 F.3d at 906-07.   CAT claims differ from

asylum and withholding of removal in two principal respects: (1)

                                -8-
CAT claims require a showing of the “higher bar” of torture,

rather than persecution; and (2) CAT regulations do not require

the torture to fall within one of the enumerated grounds for

withholding of removal.   Id.    The applicant must demonstrate

“that it is more likely than not that he or she would be tortured

if removed to the proposed country of removal.”     Id. (quoting 8

C.F.R. § 208.16(c)(2)).   Because of the sketchy details

surrounding the alleged police indifference following the

shooting and the aforementioned credibility doubts surrounding

the testimony, the IJ concluded that the petitioners had not

established the requisite likelihood of torture upon removal to

Pakistan.   Thus, we conclude that the BIA’s decision to affirm

the IJ’s denial of CAT protection was supported by substantial

evidence.

                          III.   CONCLUSION

     For the foregoing reasons, we DISMISS the petition for

review insofar as it seeks review of the denial of asylum and we

DENY the balance of the petition for review and the accompanying

motion to transfer.




                                  -9-
