                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 17 2016

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


BEHAR ZYMBERI, AKA Muharrem                        No. 13-72145
Hyseni,
                                                   Agency No. A094-502-752
              Petitioner,

 v.                                                MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                       Argued and Submitted March 14, 2016
                             San Francisco, California

Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.

      Behar Zymberi petitions for review of the Board of Immigration Appeals’

(BIA) denial of his applications for asylum and withholding of removal. We

dismiss the petition in part and deny the petition in part.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      An asylum application must generally be filed within one year of the

applicant’s arrival in the United States, but a late application may be considered if

the applicant shows that extraordinary circumstances prevented the applicant from

filing the application within the one-year time limit. 8 U.S.C. § 1158(a)(2)(B),

(D). We only have jurisdiction to review a BIA decision denying an application as

untimely when our review is based on a constitutional question or a question of

law. Ramadan v. Gonzalez, 479 F.3d 646, 650 (9th Cir. 2007) (citing Fernandez-

Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.), vacated, 431 F.3d 1212 (9th Cir.

2005) (Mem)). Questions of law include the application of undisputed facts to

statutes or regulations. Id.

      Zymberi contends that the BIA erred in rejecting his asylum application as

time-barred because his emotional disability prevented a timely filing. See 8

C.F.R. § 1208.4(a)(5)(i). We lack jurisdiction to consider this argument because it

depends on disputed facts. Whether Zymberi’s had mental and emotional

disabilities during his first year in the United States was disputed. See Sumolang v.

Holder, 723 F.3d 1080, 1082 (9th Cir. 2013). We therefore dismiss the challenge

to the BIA’s rejection of the asylum petition.

      Zymberi also contends that the BIA erroneously dismissed his withholding

of removal application because he suffered past persecution as an ethnic Albanian


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and Muslim during the Kosovo War. We have jurisdiction to assess this argument

because a withholding of removal claim is not subject to the one-year limitations

period that applies to asylum. But substantial evidence supports the BIA’s

conclusion that conditions in Kosovo have changed significantly since Zymberi

left, rebutting the presumption of well-founded fear of future persecution. See

Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010) (citing 8 C.F.R.

§ 1208.16(b)(1)(i)(A)). And even assuming that the argument is not waived,

Zymberi is unable to establish eligibility for withholding of removal “through an

independent showing of clear probability of future persecution.” See Tamang v.

Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citing 8 C.F.R. § 1208.16(b)(1), (2)).

Although Zymberi asserts that he fears further racial and religious persecution by

Serbians, the record demonstrates that Kosovo has gained independence from

Serbia, and tensions between the two countries are fading. Kosovo is now headed

by a Muslim majority government, not by Serbians. Substantial evidence thus

supports the BIA’s conclusion that Zymberi did not prove that he would “more

likely than not” suffer persecution upon returning to Kosovo. See Ghaly v. I.N.S.,

58 F.3d 1425, 1428–29 (9th Cir. 1995).

      This case arises in the aftermath of the horrible strife, genocide and ethnic

cleansing that characterized Kosovo more than ten years ago in the 1990s. But


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given the current government regime in Kosovo, substantial evidence supports the

BIA’s decision that he can be safely removed there.

      DISMISSED IN PART AND DENIED IN PART.




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