                                                            [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                              MAY 17, 2005
                             No. 04-13746                   THOMAS K. KAHN
                         Non-Argument Calendar                  CLERK
                       ________________________

                          BIA No. A76-997-786

MANES SATINY,

                                                                 Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                 Respondent.


                       ________________________

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

                              (May 17, 2005)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
        Manes Satiny, a Haitian national proceeding pro se, petitions for review of

the Board of Immigration Appeals’s (“BIA’s”) July 9, 2004, decision affirming an

Immigration Judge’s (IJ’s) order of removal and denial of Satiny’s application for

asylum and withholding of removal as well as his claims under the United Nations

Convention Against Torture (“CAT”). Satiny argues on appeal that (1) the IJ and

the BIA should have waived the one-year filing deadline for asylum applications;

(2) he established a well-founded fear of future persecution if returned to Haiti; and

(3) the BIA was required to grant him a continuance or remand to pursue a change

in his immigrant status based on his father’s pending naturalization. For the

reasons stated more fully below, we deny Satiny’s petition in part and dismiss in

part.

        Satiny entered the United States without inspection on or about November

11, 1998, and filed an application for asylum and withholding of removal, stamped

June 12, 2000, but signed on March 16, 2000. Satiny’s application for asylum and

withholding of removal alleged that he once had been hunted by a former member

of the military who did not want him to receive “a promotion” and had threatened

to kill him if he did not “leave the area.” He further indicated that he and his

family were involved in helping to restore a democratic government in Haiti. No

further specifics were included, and the only evidence submitted was the State

Department’s Country Report on Haiti’s Human Rights Practices, issued in
                                           2
February 2001.

      Satiny was served with a notice to appear on August 21, 2000, charging him

with removability under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for

being present in the United States without being admitted or paroled or arriving in

the United States at a time or place other than as designated by the Attorney

General. Satiny conceded to the allegations and charge of removability. At that

time he indicated that, in addition to asylum, he sought withholding of removal and

relief under the CAT. At his hearing, Satiny, through counsel, argued that he was

served with a notice to appear on November 24, 1998, giving the court jurisdiction

over his asylum application at that point.

      Satiny testified that he was 26 years old, born in La Tortue, Haiti, and

arrived in the United States in November 1998 by boat. When asked why he did

not file his application for asylum until June of 2000, Satiny responded that he “did

not know what to do.” Satiny also testified that his father came to the United

States many years before Satiny’s arrival and had become a lawful permanent

resident in 1996. He testified that he did not ask his father what he needed to do

because his father was “not responsible to know [how] to do anything.”

      When asked why he left Haiti, Satiny testified that he worked for the return

of “Aristide,” but when Aristide returned to Haiti, Satiny was unable to go back to

school and he decided to flee the country. Neither Satiny nor anyone in his family
                                             3
had ever been arrested for any reason while in Haiti, and Satiny testified that he

had not ever been physically harmed by authorities in Haiti. The only incident he

mentioned was when he and others were going to school one day and were stopped

by authorities who told them to return home, which they did, “and nothing

happen[ed].” Satiny further testified that he feared returning to Haiti because “any

time I listen to the radio I hear that things are getting worse in Haiti and that we

have more problems now.”

      The IJ first determined that the only notice to appear filed in the court was

the August 2000 one, and jurisdiction arose at that point, making Satiny’s

application for asylum untimely because it was filed more than a year after his

entry into the United States. Next, the IJ issued an oral decision, finding that (1)

Satiny was ineligible for asylum because he came into the United States in

November of 1998, but did not file his asylum application until June of 2000, more

than one year after his arrival, and (2) Satiny had no justifiable excuse for failing to

file his application in a timely fashion. As to the withholding of removal and CAT

claims, the IJ found that Satiny “doesn’t have a case. He’s general and wishy-

washy. I don’t like going back because one day I was going to school and some

authorities stopped me and said, go home. And it’s dangerous. That was his whole

case.” Therefore, the IJ found that Satiny had failed to meet the eligibility

requirements for withholding of removal or the CAT and ordered Satiny removed
                                           4
to Haiti.

       Satiny appealed to the BIA and, in addition to challenging the IJ’s findings,

he also requested a continuance or a remand to pursue an immigrant visa petition

based on his father’s impending naturalization. In a written per curiam opinion

issued July 9, 2004, the BIA adopted and affirmed the decision of the IJ, stating

that the IJ properly had determined that Satiny’s claim for asylum was untimely

and that he had failed to meet his burden of proof for withholding of removal or

protection under the CAT. The BIA did not, however, address Satiny’s request for

a continuance to pursue an immigrant visa petition. On July 28, 2004, Satiny

petitioned this Court for review of the BIA’s July 9, 2004, order.

       However, on August 3, 2004, Satiny filed with the BIA a counseled motion

to reconsider and reopen his proceedings in light of the fact that the BIA had

dismissed his appeal without addressing his request for a continuance to pursue a

change in his immigrant status. The BIA denied the motion in a September 22,

2004, order, finding that (1) Satiny had raised the continuance issue for the first

time on appeal, and the BIA generally did not consider new evidence on appeal,

and (2) in any event, Satiny’s argument was without legal merit and

reconsideration was not warranted. Satiny did not file a petition for review of this

decision.

       Because Satiny’s removal proceedings commenced after April 1, 1997, the
                                           5
effective date of IIRIRA, this case is governed by the permanent provisions of the

INA, as amended by IIRIRA. Gonzalez-Oropeza v. U.S. Attorney Gen., 321 F.3d

1331, 1332 (11th Cir. 2003). We will review only the BIA’s decision, except to

the extent that it expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001) (citation omitted) (transitional rules case). Insofar as

the BIA adopts the IJ’s reasoning, we will review the IJ’s decision as well. Id.

(citation omitted).

      On appeal, Satiny first argues that he was not at fault in filing his application

for asylum more than one year after his arrival in the United States, and the INS’s

failure to file the first notice to appear should qualify as an extraordinary

circumstance sufficient to exempt him from the timeliness requirements.

      As amended by IIRIRA, INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B),

provides that an alien may not apply for asylum unless he demonstrates by clear

and convincing evidence that the application was filed within one year of his

arrival in the United States. A late application for asylum may be considered in the

existence of either changed circumstances or extraordinary circumstances relating

to the delay in filing the application. See INA § 208(a)(2)(D), 8 U.S.C.

§ 1158(a)(2)(D).

      However, we have held that “federal courts do not have jurisdiction to

review the Attorney General’s decision as to timeliness of [an asylum] request.
                                            6
Pursuant to 8 U.S.C. § 1158(a)(3), 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, is not reviewable by any

court.” Fahim v. United States Attorney General, 278 F.3d 1216, 1217 (11th Cir.

2002). Thus, we are without jurisdiction to review the IJ’s and BIA’s finding that

Satiny’s asylum claim was untimely, and Satiny’s petition for review of that

decision is dismissed. We will, however, review Satiny’s eligibility for

withholding of removal or relief under the CAT. See id. at 1217-18.

      Satiny next argues that the IJ should have granted him relief because he

established a well-founded fear of future persecution on account of imputed

political opinion.   To the extent that the IJ’s decision was based on a legal

determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-

48 (11th Cir. 2001). The IJ’s factual determinations are reviewed under the

substantial evidence test, and this Court “must affirm the [IJ’s] decision if it is

‘supported by reasonable, substantial, and probative evidence on the record

considered as a whole.’” Al Najjar, 257 F.3d at 1283-84 (citation omitted).

      “As to the appeal of the denial of withholding of removal under § 241(b)(3)

of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3), the findings of fact

are conclusive unless the record demonstrates that ‘any reasonable adjudicator

would be compelled to conclude to the contrary.’” Fahim, 278 F.3d at 1218; see
                                            7
also INA §§ 242(b)(4)(A)-(B), 8 U.S.C. §§ 1252(b)(4)(A)-(B). Finally, “[w]hen an

alien is seeking withholding of deportation, he bears the burden of demonstrating

that it is ‘more likely than not’ that he will be persecuted or tortured upon his

return to the country in question.” Id.

      The United States also has agreed, pursuant to Article 3 of the CAT, not to

“expel, return (refouler) or expedite a person to another state where there are

substantial grounds for believing that he would be in danger of being subjected to

torture.” The Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”),

Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681 (1998) (codified at 8 U.S.C.

§ 1231). Section 2242 of FARRA incorporated the CAT into domestic law. To

obtain withholding of removal under the CAT, the burden is on the applicant to

show that it is “more likely than not” that he will be tortured in the country of

removal. 8 C.F.R. § 208.16(c)(2). For purposes of CAT relief, the term

“torture”refers to the intentional infliction of severe pain or suffering, mental or

physical, “by or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity” in order to intimidate or for

other proscribed purposes. 8 C.F.R. § 208.18(a)(1). Evidence relevant to the

assessment of eligibility for CAT relief includes, but is not limited to: (1) evidence

of past torture; (2) the viability of relocation as a means to avoid torture; (3) gross,

flagrant or mass human rights violations in the country of removal; and (4) other
                                            8
relevant country conditions. See 8 C.F.R. § 208.16(c)(3).

      The IJ, whose decision was adopted by the BIA, found that Satiny had no

case for withholding of removal or relief under the CAT. He specifically noted

that Satiny was “general and wishy-washy” and that Satiny’s testimony simply was

that he did not want to go back to Haiti because he was once stopped by authorities

on his way to school and told to go home, and “it’s dangerous” in Haiti.

      Satiny’s application for asylum and withholding of removal alleged that he

had once been pursued by a former member of the Haitian military who did not

want him “promoted” and had threatened to kill him. Satiny never specified the

job, what the promotion was, why this person would not want him to have the

promotion, or whether the “former member” of the military still was working for

the Haitian government. At his hearing, Satiny did not mention the promotion or

the threat, instead testifying that (1) neither he nor anyone in his family had been

physically harmed or arrested by authorities in Haiti; (2) one time, while he was on

his way to school, authorities told him to return home, which he did without further

incident; and (3) he feared returning to Haiti because he heard on the radio that

“things” were getting worse there.

      Based on Satiny’s application and testimony, it cannot be said that the

evidence compels a reversal of the IJ’s and BIA’s decisions that Satiny failed to

show that it was more likely than not that he would be persecuted or tortured if
                                           9
returned to Haiti. See Fahim, 278 F.3d at 1218. At his hearing, Satiny could not

point to a single instance of physical harm or arrest directed at either himself or his

family by Haitian authorities, and, therefore, substantial evidence supported the

IJ’s decision. Accordingly, Satiny’s petition is denied.

       Lastly, Satiny argues that he is to become the beneficiary of an “immigrant

visa petition” filed by his father, who is presently an applicant for naturalization

awaiting his swearing in ceremony. Satiny argues that, under the Legal

Immigration Family Equity Act, Pub. L. No. 106-554, 114 Stat. 2763 (2000)

(enacting H.R. 5666, 106th Cong.), he is entitled to a continuance to pursue his

immigrant visa petition because after his father is naturalized, he will qualify for an

adjustment of status regardless of the manner of his entry into the United States.1

       We have jurisdiction over a “final order of removal,” so long as the petition

for review is filed within 30 days. 8 U.S.C. § 1252(a)(1) and (b)(1). When the

BIA dismissed Satiny’s appeal in its July 9, 2004 order, the IJ’s removal order

became final. See 8 C.F.R. § 1241.1(a). Accordingly, when Satiny timely filed his

petition for review, we had jurisdiction to review the BIA’s July 9, 2004, order.

       1
          The LIFE Act provides that “if an alien has obtained lawful permanent resident status
under section 1104 of the Legal Immigration Family Equity Act and the alien has an eligible
spouse or child who is no longer physically present in the United States, the Attorney General
shall establish a process under which the eligible spouse or child may be paroled into the United
States in order to obtain [certain immigration benefits]. . . . An alien so paroled shall not be
treated as paroled into the United States for purposes of section 201(c)(4) of the Immigration and
Nationality Act. Assa’ad v. United States Attorney General, 332 F.3d 1321, 1338 n.21 (11th Cir.
2003).
                                                 10
That order inexplicably failed to address his request for a continuance or a remand.

We assume, arguendo, that the BIA’s failure to address Satiny’s request was an

abuse of discretion, which ordinarily would require us to remand Satiny’s case to

the BIA.

      However, after Satiny filed his petition for review of the BIA’s July 9, 2004,

order, he requested that the BIA reconsider that order and reopen the proceedings

because the July 9 order failed to address his request for a continuance or remand.

The BIA acknowledged that its initial order failed to consider this argument, but

found that Satiny’s arguments were without legal merit and, accordingly, denied

the motion in its September 22, 2004, order. Therefore, assuming that we found

error in the BIA’s July 9, 2004, order, the only relief we could grant Satiny would

be a remand for the BIA to consider his request for a continuance or remand, which

the BIA already has done, rendering the issue moot.

      Following the BIA’s denial of his motion for reconsideration on September

22, 2004, Satiny failed to file a petition for review of that order. The BIA’s denial

of Satiny’s motion for reconsideration constituted a separate order that Satiny

could have, but failed to, appeal. Cf. Stone v. INS, 514 U.S. 386, 405-06, 115

S.Ct. 1537, 1549, 131 L.Ed.2d 465 (1995) (decided under the former INA).



Accordingly, the only decision we have jurisdiction to review is the July 9, 2004,
                                          11
order, and, as discussed supra, no reversible error is present in that order.

Therefore, we deny Satiny’s petition for review in part and dismiss in part.

      PETITION DENIED IN PART, DISMISSED IN PART.




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