                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                        Nos. 05-10090 & 05-11460         ELEVENTH CIRCUIT
                                                         DECEMBER 13, 2005
                        Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                           BIA No. A97-200-778

EL HADJI RAVANE DIOP,


                                                             Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                             Respondent.


                       ________________________

                  Petitions for Review of an Order of the
                      Board of Immigration Appeals
                       _________________________

                             (December 13, 2005)

Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.

PER CURIAM:

    El Hadji Ravane Diop petitions for review of the Board of Immigration
Appeals’ (“BIA”) (1) December 9, 2004 order affirming the Immigration Judge’s

(“IJ”) denial of Diop’s motion for continuance to obtain counsel and (2) February

14, 2005 order denying Diop’s motion to reopen his removal proceedings based on

his appellate counsel’s ineffectiveness.1 On appeal, Diop presents the following

issues: (1) whether the IJ abused his discretion and violated Diop’s due process

rights by denying Diop’s motion for continuance to obtain an attorney and (2)

whether the BIA abused its discretion by denying Diop’s motion to reopen based

upon the ineffective assistance of Diop’s appellate counsel.

       An IJ has discretion to grant a continuance in an immigration proceeding

“for good cause shown.” 8 C.F.R. §1003.29. We have jurisdiction to review the

IJ’s discretionary decision to deny Diop’s motion for continuance. Zafar v. United

States Attorney Gen., 11th Cir. 2005, ___ F.3d ___, (Nos. 04-16613, 04-16689, &

04-16750, Sept. 27, 2005). The IJ did not abuse his discretion in denying the

motion. The IJ had previously granted a continuance to provide Diop almost four

months within which to obtain an attorney, and Diop failed to contact any

attorneys on the list that the IJ provided him. Additionally, Diop has not

demonstrated that an attorney’s presence would have changed the outcome.

       Diop also argues that the outcome of his case would have been different with



       1
           With this opinion, we are addressing two petitions for review that were consolidated
into this appeal.
                                                 2
the assistance of counsel and thus the denial of his motion for continuance violated

his right to due process. However, “[t]here is no constitutionally protected right to

discretionary relief, which is the relief requested here.” Id. (citing Tefel v. Reno,

180 F.3d 1286, 1300 (11th Cir. 1999)).

        We review the BIA’s denial of a motion to reopen for an abuse of

discretion. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999).

Pursuant to the Fifth Amendment Due Process Clause, “[a]liens enjoy the right to

the effective assistance of counsel in deportation proceedings.” Id. at 1146. “[T]o

establish the ineffective assistance of counsel in the context of a deportation

hearing, an alien must establish that his or her counsel’s performance was deficient

to the point that it impinged the ‘fundamental fairness’ of the hearing.” Id. In

addition, a petitioner seeking to reopen his proceedings due to ineffective

assistance of counsel must show that counsel’s performance was so deficient that it

may have affected the outcome of the proceedings. Dakane v. United States

Attorney Gen., 399 F.3d 1269, 1274 (11th Cir. 2005).

      Diop argues that his appellate counsel was ineffective because he failed to

contest before the BIA the IJ’s finding that Diop’s asylum application was time-

barred. Diop specifically argues that, even though he admittedly filed his

application two months late, his appellate counsel should have contended that

Diop’s delay was reasonable due to the extraordinary circumstances of being
                                           3
forced to care for his sick brother and receiving faulty legal advice. Diop argues

that his attorney’s failure to present these arguments on appeal prejudiced him

because this Court cannot review a time-barred application.

      An alien may not apply for asylum unless he demonstrates by clear and

convincing evidence that the application has been filed within one year of his

arrival in the United States. Immigration and Nationality Act § 208(a)(2)(B); 8

U.S.C. § 1158(a)(2)(B). A late application for asylum may be considered in the

existence of changed circumstances which materially affect the alien’s eligibility

for asylum or extraordinary circumstances relating to the delay in filing the

application. 8 U.S.C. § 1158(a)(2)(B), (D). No court can review the Attorney

General’s decision regarding whether an alien complied with the one-year time

limit or established extraordinary circumstances, such that the time limit should be

waived. 8 U.S.C. § 1158(a)(3); Fahim v. United States Attorney Gen., 278 F.3d

1216, 1217-18 (11th Cir. 2002) (per curiam).

      Diop admittedly filed his application two months late. He has failed to show

prejudice from his appellate counsel’s failure to argue on appeal to the BIA that the

IJ erred in finding Diop’s asylum application time-barred based on an absence of

extraordinary circumstances. The record does not support Diop’s contention that

his appellate counsel should have argued that the IJ erroneously assumed Diop had

ceased taking care of his brother several months before the filing deadline. The
                                          4
record demonstrates that the IJ was aware of Diop’s brother’s ongoing condition

since Diop specifically testified that, even on the day of the asylum hearing, his

brother vacillated between getting better and being sick.

      Additionally, the record does not support Diop’s contention that his

appellate counsel should have argued that the IJ erred in not acknowledging that

the attorney who misinformed Diop was a paralegal and that no formal complaint

process existed with regard to paralegals. Diop had submitted as an exhibit at his

hearing the business card for the alleged attorney that misinformed him. This

exhibit, which the IJ reviewed, clearly stated that the individual Diop had spoken

to was a paralegal. Additionally, Diop admitted that he had not attempted to file

any complaints against the paralegal, whom he thought at the time was a lawyer,

and if he had done so, the Bar Association would have informed him that the

paralegal was not a lawyer. Thus, Diop fails to establish that his appellate

counsel’s failure to argue that the IJ erred in his assessment of Diop’s alleged

extraordinary circumstances was so deficient that it may have affected the

proceedings’ outcome.

      Diop also argues that his appellate counsel’s failure to contest the IJ’s

interpretation of “past persecution” prejudiced him because Diop’s testimony,

combined with the current country reports, demonstrated that he suffered past

persecution on account of his political opinion. Diop also argues that he was
                                           5
prejudiced by his appellate counsel’s failure to contest the IJ’s definition of a

“well-founded” fear of future persecution because the BIA may have held that the

IJ erroneously relied upon one country report in rejecting Diop’s claim of future

persecution. Diop claims that had these arguments been made, the BIA would

have ruled in his favor on his asylum claim under the Immigration and Nationality

Act (“INA”) and his withholding of removal claims under the INA and the United

Nations Convention Against Torture (“CAT”).

      An alien who arrives in, or is present in, the United States may apply for

asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant

asylum if the alien meets the INA’s definition of a “refugee.” See 8 U.S.C. §

1158(b)(1)(A). A “refugee” is defined as a person who cannot return to his home

country “because of persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of

proving statutory “refugee” status. See Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001).

      If the petitioners demonstrate past persecution, they are presumed to have a

well-founded fear of future persecution unless the government can rebut this

presumption by showing a fundamental change in circumstances in the country or

the ability to avoid future persecution by relocating within the country. 8 C.F.R
                                           6
§ 208.13(b)(1). If the petitioners cannot show past persecution, then they must

demonstrate a well-founded fear of future persecution that is both “subjectively

genuine and objectively reasonable.” See Najjar, 257 F.3d at 1289. The subjective

component can be proved “by the applicant’s credible testimony that he or she

genuinely fears persecution,” while the objective component “can be fulfilled

either by establishing past persecution or that he or she has a good reason to fear

future persecution.” Id. (quotation omitted).

      Although the INA does not expressly define “persecution” for purposes of

qualifying as a “refugee,” we have noted that other circuits have stated that

“persecution is an extreme concept, requiring more than a few isolated incidents of

verbal harassment or intimidation.” Sepulveda v. United States Attorney Gen., 401

F.3d 1226, 1231 (11th Cir. 2005) (per curiam) (quotations omitted). To establish

the necessary causal connection between the political opinion and the feared

persecution, the alien must present “specific, detailed facts showing a good reason

to fear that he or she will be singled out for persecution on account of such an

opinion.” Id. at 1231 (quotation omitted) (emphasis in original).

      An alien is entitled to withholding of removal under the INA if he or she can

show that his or her “life or freedom would be threatened on account of race,

religion, nationality, membership in a particular social group, or political opinion.”

Mendoza v. United States Attorney Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); see
                                           7
also 8 U.S.C. § 1231(b)(3). As a general rule, however, if “an applicant is unable

to meet the ‘well-founded fear’ standard for asylum, he is generally precluded from

qualifying for either asylum or withholding of deportation.” Najjar, 257 F.3d at

1292-93 (quotation omitted). The burden of proof for an alien seeking withholding

of removal under the CAT, like the burden for an alien seeking withholding of

removal under the INA, is also higher than the burden for showing entitlement to

asylum. Najjar, 257 F.3d at 1303.

      Diop fails to demonstrate that the BIA abused its discretion in denying

Diop’s motion to reopen based on Diop’s appellate counsel’s failure to appeal the

IJ’s denial of Diop’s asylum and withholding of removal claims. Additionally,

Diop does not show that the outcome of his case would have been different if his

appellate counsel had argued on appeal that the IJ erred in denying Diop’s asylum

claim. Substantial evidence supports the IJ’s finding that Diop did not suffer past

persecution on account of his political opinion, and thus was not eligible for

asylum. Diop testified to only one incident of persecution that occurred eight years

prior to Diop’s leaving Senegal for the United States, in which Diop was arrested,

detained for two months, and then released after being burned on his hand.

Moreover, Diop left the Casamance Democratic Army Movement in 1994 after his

arrest and was not bothered again until 2001 when he offered to conduct a training

seminar on information technology for some members of the movement. After he
                                          8
conducted the seminar, Diop testified that his contact with authorities consisted of

his being asked some questions in a non-custodial setting.

      Additionally, an appellate counsel challenge to the IJ’s finding that Diop

failed to establish a well-founded fear of future persecution in Senegal would not

have changed the outcome. Even if the IJ relied on the 2002 country report, other

articles in the record supported the 2002 country report’s assessment that the

situation in Senegal seemed to be improving, especially noting the country’s recent

fair and free elections and the new president’s ongoing attempt to continue peace

talks with the Casamance Democratic Army Movement. Moreover, the police

search of Diop’s house after he left for the United States, and a letter from one of

Diop’s brothers in Senegal indicating that the police were searching for him, fails

to amount to a well-founded fear of future persecution, since before Diop left

Senegal the government was only questioning him in a non-custodial setting.

      Lastly, because Diop failed to establish past persecution or a well-founded

fear of future persecution sufficient to support his asylum claim, as discussed

above, his appellate counsel would not have been able to establish that he was

eligible for withholding of removal under the INA and the CAT. Thus, the denial

of Diop’s motion to reopen based on the ineffective assistance of his appellate

counsel was proper.

      Upon review of the record and consideration of the parties’ briefs, we affirm
                                           9
the BIA’s orders affirming the denial of the IJ’s motion for continuance and

denying Diop’s motion to reopen based on the ineffective assistance of his

appellate counsel.

      PETITION DENIED.




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