                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       February 4, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
HAMZA BALLAD,

             Petitioner,

v.                                                         No. 13-9541
                                                       (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before KELLY, ANDERSON, and MATHESON, Circuit Judges.


      Hamza Ballad, a native and citizen of Morocco, seeks review of an order

entered by the Board of Immigration Appeals (BIA) affirming the removal order of

an Immigration Judge (IJ). The BIA dismissed Mr. Ballad’s asylum claim as

untimely, and denied his claims for restriction on removal and protection under the

Convention Against Torture (CAT). We dismiss the asylum claim for lack of



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction, and, exercising jurisdiction under 8 U.S.C. § 1252, we deny the claims

for restriction on removal and CAT protection.

                                  I. BACKGROUND

      Mr. Ballad legally entered the United States in May 2008. He conceded that

he remained after his authorized stay expired and that he is subject to removal for

having overstayed his visa. On June 15, 2010, he filed his application for asylum,

restriction on removal, and CAT protection.

      At a hearing before the IJ, Mr. Ballad testified that when he was fourteen years

old, he was attacked by a group of Muslims who stole money from him. His parents

filed a police report. He also testified that when he was seventeen, his parents

punished him severely, including beating him and imprisoning him in a pantry, for

not engaging in Muslim prayers and practices. He further testified that at age

eighteen during Ramadan in September 2001, a group of Muslims attacked him

because he was eating before sundown, contrary to Muslim doctrine. He did not seek

assistance from the police.

      Mr. Ballad testified that he married a Catholic woman in January 2010. He

stated that if he returned to Morocco, he would share his Christian faith with others

and that his family would expect him to marry a Muslim woman.

      The IJ found Mr. Ballad’s testimony not credible, citing discrepancies between

his testimony and his application documents; inconsistencies in his testimony

concerning his in-home imprisonment, such as whether he was let out to eat and go to


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school; the implausibility that a seventeen-year-old would repeatedly return to

in-home captivity after having been released to attend school; and the fact that

Ramadan 2001 was in November, not September. The IJ characterized the robbery

when he was fourteen as a general crime that did not appear to be based on Mr.

Ballad’s beliefs. In addition, the IJ found it inconsistent that Mr. Ballad continued to

send $500 to $1,000 to his parents each month despite their maltreatment of him.

      The IJ found that Mr. Ballad had not established the requisite changed or

extraordinary circumstances for an exception to the one-year period to file an asylum

application and, further, that he had not stated sufficient grounds for asylum,

restriction on removal, or CAT protection. Accordingly, the IJ ordered Mr. Ballad

removed to Morocco.

      Mr. Ballad timely appealed to the BIA, challenging the IJ’s credibility

determination and asserting that his parents’ abuse and his own conversion to

Catholicism warranted relief. The BIA affirmed the IJ’s findings and removal order.

                         II. UNTIMELY ASYLUM CLAIM

      To be considered for asylum, an alien is required to demonstrate by clear and

convincing evidence that his application was filed within one year after his arrival in

the United States. 8 U.S.C. § 1158(a)(2)(B). Mr. Ballad did not file his asylum

application until two years after he arrived in the United States. An asylum

application may nevertheless be considered “if the alien demonstrates to the

satisfaction of the Attorney General either the existence of changed circumstances


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which materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application within the [one-year

period].” Id. § 1158(a)(2)(D). “Changed circumstances,” within the meaning of

§ 1158(a)(2)(D), include “[c]hanges in the applicant’s circumstances that materially

affect the applicant’s eligibility for asylum.” 8 C.F.R. § 1208.4(a)(4)(i)(B).

          This court generally lacks jurisdiction to review an IJ determination about the

timeliness of an asylum application. 8 U.S.C. § 1158(a)(3); Diallo v. Gonzales, 447

F.3d 1274, 1281 (10th Cir. 2006). We do have jurisdiction, however, to review a

claim that the BIA’s application of the one-year deadline violated an alien’s

constitutional rights. 8 U.S.C. § 1252(a)(2)(D); Diallo, 447 F.3d at 1281.

          Mr. Ballad asserts that his conversion to Catholicism beginning in March

2010, and his marriage to a Catholic woman in January 2010, qualify as changed

circumstances that materially affected his eligibility for asylum. He maintains that if

returned to Morocco, he will suffer social ostracism due to his Catholic faith. In

addition, he points out that anti-Islam proselytizing in public would subject him to

arrest.

          In his brief to this court, Mr. Ballad does not claim that the BIA committed

constitutional or legal error in refusing to excuse his late filing. Rather, he argues

that the evidence demonstrated that he would be persecuted due to his conversion to

Catholicism. In particular, he challenges the agency’s finding that his testimony was

not credible. Because his arguments concerning the merits of his asylum claim are


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“directed solely at the agency’s discretionary and factual determinations, [they]

remain outside the scope of judicial review,” Diallo, 447 F.3d at 1281.1 We dismiss

Mr. Ballad’s asylum claim for lack of jurisdiction.

                         III. RESTRICTION ON REMOVAL

      The time limit for filing an asylum application does not apply to an application

for restriction on removal. Wei v. Mukasey, 545 F.3d 1248, 1250 (10th Cir. 2008);

8 C.F.R. § 208.4(a). “To obtain restriction on removal, the alien must demonstrate

that [his] ‘life or freedom would be threatened in [the proposed country of removal]

because of [his] race, religion, nationality, membership in a particular social group,

or political opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005)

(quoting 8 U.S.C. § 1231(b)(3)(A)).

      An alien may create a rebuttable presumption of eligibility for
      restriction on removal by either (1) demonstrating past persecution in
      the proposed country of removal on account of one of the protected
      grounds; or (2) showing that it is more likely than not that the alien
      would be subject to persecution on one of the specified grounds upon
      returning to the proposed country of removal.

Sidabutar v. Gonzales, 503 F.3d 1116, 1123-24 (10th Cir. 2007) (citations and

internal quotation marks omitted).

      We review the BIA’s decision to determine whether it is supported by

substantial evidence, considering the record as a whole. Neri-Garcia v. Holder,


      1
        Mr. Ballad’s brief states that the BIA erred as a matter law in denying his
application, Aplt. Br. at 10, but this conclusory statement does not change the
substance of his arguments that relate only to the agency’s credibility determinations
and evidence weighing.
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696 F.3d 1003, 1008 (10th Cir. 2012). “Agency findings of fact are conclusive

unless the record demonstrates that any reasonable adjudicator would be compelled

to conclude to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir.

2007) (internal quotation marks omitted). We neither reweigh the evidence nor

assess witness credibility. Id. at 789. The BIA issued a single-member decision.

Therefore, “although we will not affirm on grounds raised in the IJ decision unless

they are relied upon by the BIA, we are not precluded from consulting the IJ’s more

complete explanation of those same grounds.” Maatougui v. Holder, 738 F.3d 1230,

1237 n.2 (10th Cir. 2013) (internal quotation marks, brackets and ellipsis omitted).

      Mr. Ballad claims past persecution based on being robbed at the age of

fourteen, his parents’ punishing him for failing to observe Muslim practices when he

was seventeen and living at home, and the beating he sustained during Ramadan 2001

by Muslims. The IJ found Mr. Ballad’s reports of these incidents to be not credible.

The BIA agreed. An IJ “must give specific, cogent reasons” for his credibility

determination, a determination we review for substantial evidence. Uanreroro v.

Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (internal quotation marks omitted).

      We conclude substantial evidence supports the IJ’s finding that Mr. Ballad’s

testimony was not credible. As the BIA noted, Mr. Ballad’s hearing testimony

differed from his written documents concerning whether his family was required to

move frequently due to threats from violent Muslim groups; and his claim of parental

abuse and in-home imprisonment was inconsistent with his testimony that he was let


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out to eat and go to school. Less persuasive but nonetheless having support in the

record were the IJ’s findings that Mr. Ballad’s practice of sending money home to his

parents was inconsistent with his claim of parental abuse; and that the alleged

Ramadan beating for violating Muslim doctrine had not occurred during Ramadan.

We conclude that Mr. Ballad failed to meet his burden of establishing past

persecution on account of one of the statutorily protected grounds.

      Based on this conclusion, Mr. Ballad is not entitled to a presumption that his

life or freedom would be threatened in the future. See 8 C.F.R. § 1208.16(b)(1)(i)

(stating if alien demonstrates past persecution, “it shall be presumed that [his] life or

freedom would be threatened in the future in the country of removal”). Even so, we

consider his claim of a well-founded fear of future persecution. See id.

§ 1208.16(b)(2). “Without a showing of past persecution, an alien must demonstrate

that it is more likely than not that he will be individually persecuted in the future.”

Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009). “For a fear of future

persecution to be well-founded, it must be both subjectively genuine and objectively

reasonable.” Ritonga v. Holder, 633 F.3d 971, 976 (10th Cir. 2011) (internal

quotation marks omitted).

      Mr. Ballad bases his claim of future persecution on his conversion to

Catholicism and his marriage to a Catholic woman, which he contends will subject

him to social ostracism. He does not challenge the BIA’s observation that Moroccan

law does not prohibit interfaith marriages. The BIA thus found that any


                                           -7-
discrimination and ostracism Mr. Ballad may suffer does not rise to the level of

persecution. This finding is supported by substantial evidence. See Zehatye v.

Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (holding “some degree of social

ostracism and economic hardship due to her religion did not rise to the level of

persecution”); Chakir v. Gonzales, 466 F.3d 563, 570 (7th Cir. 2006) (stating that

persecution does not include treatment regarded as unfair or unjust); cf. Tulengkey,

425 F.3d at 1280 (noting “denigration, harassment, and threats” are insufficient to

establish persecution).

       Mr. Ballad also claims that he would be arrested in Morocco for proselytizing

a non-Islam religion in public. The record indicates that it is illegal in Morocco to

attempt to convert a Muslim to another religion. Admin. R. at 433. But Mr. Ballad

did not testify that he intended to convert Muslims or even that he wished to

proselytize in public. Rather, he said he would share his faith with others by telling

them about his conversion experience. Id. at 257-58. Substantial evidence in the

record supports a conclusion that Mr. Ballad would not be persecuted based on his

religious beliefs.

       After reviewing the record, we cannot conclude that a reasonable factfinder

would be compelled to find it more likely than not that Mr. Ballad would be

persecuted upon his return to Morocco. Accordingly, the BIA did not err in finding

that he failed to show past persecution or a well-founded fear of persecution.




                                          -8-
                      IV. CONVENTION AGAINST TORTURE

      “Article 3 of the Convention Against Torture prohibits the [return] of an alien

to a country where it is more likely than not that he will be subject to torture by a

public official, or at the instigation or with the acquiescence of such an official.”

Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (internal quotation

marks omitted). “A claim under the CAT differs from a claim for asylum or

[restriction on] removal . . . because there is no requirement that the petitioner[] show

that torture will occur on account of a statutorily protected ground.” Sidabutar,

503 F.3d at 1125 (internal quotation marks omitted).

      Having affirmed the BIA’s finding that Mr. Ballad has not met his burden to

demonstrate that he will face persecution by the Moroccan government, we also

conclude that the BIA’s denial of CAT relief is supported by substantial evidence.

See id. at 1125-26.

                                  V. CONCLUSION

      Mr. Ballad’s asylum claim is dismissed for lack of jurisdiction. The petition

for review is otherwise denied.

                                                 ENTERED FOR THE COURT,



                                                 Scott M. Matheson, Jr.
                                                 Circuit Judge




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