                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-1504


SAMUEL RICHARD BHIMANPALLI; RAVINDER RUFUS BHIMANPALLI;
RITA BHIMANPALLI; REBECCA RICHARD BHIMANPALLI; RODHA RACHEL
BHIMANPALLI,

                Petitioners,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   November 20, 2012               Decided:   November 30, 2012


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Petition dismissed in part and denied in part by unpublished per
curiam opinion.


Anser  Ahmad,   ADVANCED IMMIGRATION    LAW   GROUP,  Harrisburg,
Pennsylvania, for Petitioners.       Stuart F. Delery, Acting
Assistant Attorney General, Leslie McKay, Assistant Director,
Sara J. Bergene, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Samuel        Richard         Bhimanpalli,             Ravinder              Rufus

Bhimanpalli, Rita Bhimanpalli, Rebecca Richard Bhimanpalli and

Rodha     Rachel     Bhimanpalli,       natives       and     citizens         of   India,

petition for review of an order of the Board of Immigration

Appeals (“Board”) dismissing their appeal from the immigration

judge’s order denying their applications for asylum, withholding

from     removal    and   withholding         under     the       Convention        Against

Torture    (“CAT”).       We   dismiss     in    part       and   deny    in     part      the

petition for review.

            The     asylum     applications          were     denied      because         the

applications were not timely filed and the Petitioners failed to

show changed country conditions or extraordinary circumstances

that would excuse the late filings.                  Under 8 U.S.C. § 1158(a)(3)

(2006),    the     Attorney    General’s      decision       regarding         whether      an

alien has complied with the one-year time limit for filing an

application for asylum or established changed or extraordinary

circumstances       justifying    waiver        of    that    time       limit      is    not

reviewable by any court.               Thus, this court has held that it

lacks    jurisdiction     over    an    asylum       claim    that     was     denied       as

untimely.        Niang v. Gonzales, 492 F.3d 505, 510 n.5 (4th Cir.

2007).     This court has also held that it lacks jurisdiction to

review the immigration judge’s discretionary determination based

on   factual     circumstances     that    the       alien    failed      to     establish

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changed or extraordinary circumstances excusing the late filing

of the asylum application.             Gomis v. Holder, 571 F.3d 353, 358-

59 (4th Cir. 2009) (“We join the majority of courts who have

reached this issue and hold that we lack jurisdiction to review

the immigration judge’s discretionary determination, as affirmed

by   the    BIA,      that    Gomis    had      not    demonstrated      changed    or

extraordinary circumstances to excuse her untimely filing.”).

             Although 8 U.S.C. § 1252(a)(2)(D) (2006) provides that

nothing in § 1252(a)(2)(B), (C), “or in any other provision of

this Act . . . which limits or eliminates judicial review, shall

be construed as precluding review of constitutional claims or

questions        of   law,”   the    question     of    whether    the   Petitioners

timely filed their asylum application is a question of fact, and

therefore is not affected by § 1252(a)(2)(D).

             We conclude that the Petitioners’ claim that they were

denied     due    process     in    this   instance     on   the   basis    that   the

immigration judge determined that the applications were untimely

before a hearing taking evidence is without merit.                         The record

clearly shows that the immigration judge heard evidence on this

issue    and      rendered    a     decision     that    was   supported      by   the

evidence.        Accordingly, having disposed of the Petitioners’ due

process claim, this court does not have jurisdiction to review

the factual finding that the Petitioners failed to show changed



                                            3
country    conditions       or    extraordinary        circumstances,          and     we

dismiss in part the petition for review.

           An alien who has filed an untimely asylum application

is still potentially eligible for the relief of withholding of

removal.     To establish eligibility for withholding of removal,

an alien must show a clear probability that, if she was removed

to her native country, her “life or freedom would be threatened”

on a protected ground.            8 U.S.C. § 1231(b)(3)(A) (2006); see

Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004).                         A “clear

probability” means that it is more likely than not that the

alien would be subject to persecution.                 INS v. Stevic, 467 U.S.

407,    429-30     (1984).        If     the      applicant   establishes            past

persecution, it is presumed that her life or freedom would be

threatened    on     account      of   a       protected   ground.         8     C.F.R.

§ 1208.16(b)(1) (2012).           A determination regarding eligibility

for    withholding    of     removal       is    conclusive   if     supported        by

substantial      evidence    on    the     record    considered      as    a     whole.

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

           Persecution is an “extreme concept” and may include

actions less severe than threats to life or freedom but must

rise above mere harassment.              Qiao Hua Li v. Gonzales, 405 F.3d

171, 177 (4th Cir. 2005).          “A key difference between persecution

and less-severe mistreatment is that the former is ‘systematic’

while the latter consists of isolated incidents.”                         Baharon v.

                                           4
Holder,    588    F.3d    228,     232    (4th    Cir.     2009).          The   Board   is

instructed to look at all incidents in the aggregate, including

violence or threats to family members, to determine if there is

past   persecution,        rather     than       looking     at    each     incident     in

isolation.       Id.

            The        Petitioners        claim     that     they       suffered       past

persecution.       They further claim that even if they did not show

past     persecution,       they     did     show     a    clear        probability      of

persecution if they returned to India based on a pattern or

practice of persecuting Christians.                  To succeed on a pattern or

practice    claim,       the    Petitioners       must     show     that    there   is   a

pattern or practice of persecution of persons similarly situated

to them and that it is more likely than not that their life and

freedom would be threatened upon their return because they are

members of the group.              See 8 C.F.R. § 208.16(b)(2)(i) (2012).

The Petitioners must show that the persecution is “thorough or

systemic.”       Yong Hao Chen v. INS, 195 F.3d 198, 203 (4th Cir.

1999).

            We     have        reviewed    the      record        and   conclude       that

substantial evidence supports the finding that the Petitioners

did not establish that they were the victims of past persecution




                                             5
or that there is a pattern or practice of persecuting Christians

in India. *

              The Petitioners also claim that they were eligible for

relief under the CAT.              To qualify for protection under the CAT,

a petitioner bears the burden of showing that “it is more likely

than not that he or she would be tortured if removed to the

proposed country of removal.”                8 C.F.R. § 1208.16(c)(2) (2012).

To   state    a    prima     facie    case   for    relief   under      the    CAT,   the

Petitioners must show that they will be subject to “severe pain

or suffering, whether physical or mental . . . 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. § 1208.18(a)(1) (2012); see Saintha v. Mukasey, 516 F.3d

243, 246 & n.2 (4th Cir. 2008).                   “A public official acquiesces

to torture if, ‘prior to the activity constituting torture, [the

official]      ha[s]       awareness    of       such   activity     and      thereafter

breach[es]        his   or   her     legal   responsibility        to   intervene     to

prevent such activity.’”               Lizama v. Holder, 629 F.3d 440, 449

(4th Cir. 2011) (quoting 8 C.F.R. § 1208.18(a)(7) (2012)).




      *
       In their brief, the Petitioners argue that in the absence
of past persecution, they nonetheless established a well founded
fear of persecution necessary to show eligibility for asylum.
This argument is moot in light of the fact that this court does
not have jurisdiction to review the denial of asylum.



                                             6
            We     conclude    that    substantial   evidence          supports   the

finding that it is not more likely than not that the Petitioners

face torture by or at the acquiescence of the Indian public

officials.       We recognize that the record contains evidence of

numerous incidents of harassment, persecution and even torture

of Christians, particularly pastors, ministers and nuns.                           We

cannot conclude, however, that the record compels a finding that

government officials caused or breached their responsibility to

intervene to prevent such activity.

             The    Petitioners       also   claim   they       were    denied    due

process   because     the     immigration    judge   (1)    consolidated         their

cases at their request despite indicating a lack of time to hear

all the cases at once; (2) decided that the asylum applications

were untimely before hearing evidence; and (3) decided that the

Petitioners did not qualify for CAT relief before hearing the

evidence.        We have reviewed the record and conclude that the

Petitioners were not denied due process.                 It is clear from the

record that the immigration judge gave the Petitioners all the

time they needed in order to present their case.                   It is further

clear that the immigration judge made relevant findings of fact

only   after     hearing    the   evidence     offered     in    support    of    the

Petitioners’ claims.

            Accordingly, we dismiss in part and deny in part the

petition for review.          We dispense with oral argument because the

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facts   and   legal    contentions    are   adequately   presented    in   the

materials     before   this   court   and   argument   would   not   aid   the

decisional process.

                                               PETITION DISMISSED IN PART
                                                       AND DENIED IN PART




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