                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-4124
                                   ___________

Mareko Molathwa,                      *
                                      *
             Petitioner,              *
                                      * Petition for Review of an
       v.                             * Order of the Board of
                                      * Immigration Appeals.
John Ashcroft, Attorney General       *
of the United States of America,      *
                                      *
             Respondent.              *
                                 ___________

                         Submitted: October 18, 2004
                             Filed: December 2, 2004 (Corrected: 1/26/05)
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
                         ___________

RILEY, Circuit Judge.

      Mareko Molathwa (Molathwa) petitions for review of a decision of the Board
of Immigration Appeals (BIA) summarily affirming the Immigration Judge’s (IJ)
denial of Molathwa’s application for asylum and withholding of removal. For the
reasons set forth below, we deny Molathwa’s petition for review and affirm the BIA’s
decision.
I.     BACKGROUND
       Molathwa, a native of Botswana, entered the United States in December 1997
as a nonimmigrant visitor. On November 9, 1999, the Immigration and Naturalization
Service commenced removal proceedings, charging Molathwa as a nonimmigrant
who had remained in the United States longer than authorized. Molathwa admitted
the allegations, conceded the charge of removability, and filed an application for
asylum and withholding of removal.

       The IJ held an evidentiary hearing on the merits of Molathwa’s claims for
asylum and withholding. At the hearing, Molathwa testified he had been married and
had a son in Botswana. Molathwa’s wife divorced him after Molathwa became
involved in a romantic relationship with another man, Berger Hartlebrakke (Berger).
In 1994, while Molathwa and Berger were living together in Botswana, police
officers entered Molathwa’s and Berger’s apartment without a warrant. The police
officers said they were doing “routine checks” for drugs, but never searched the
apartment for drugs. Molathwa claims the incident was merely a pretext to harass
him and Berger because of their sexual orientation.

       Molathwa testified two friends in Botswana experienced disparate treatment
due to their sexual orientation. Molathwa had a friend in Botswana whose cousins
beat him for having an affair with another man. Another friend, a South African, was
arrested and jailed for two days in Botswana for engaging in homosexual activity.
Molathwa speculates this friend, who later committed suicide, did so due to his
disgrace from being exposed as a homosexual.

       Molathwa held various teaching jobs in Botswana until he left for the United
States. Although Molathwa suspects people knew he was a homosexual, he never
experienced any problems at work. Molathwa believes his son lost friends in
Botswana because parents suspected Molathwa is a homosexual and told their
children not to play with Molathwa’s son because his father is evil. Molathwa does

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not believe his family would harm him, but he fears others would. In Botswana,
according to Molathwa, homosexuals are blamed for diseases, like AIDS, and for
natural disasters, and Molathwa is afraid others would beat him to death to save
Botswana from epidemics.

       Molathwa did not file for asylum within the first year of his arrival in the
United States. Molathwa testified he did not want to accept his sexual orientation,
he did not know whom to trust, and he did not know homosexuals could apply for
asylum in the United States. Molathwa claims he learned in therapy that homosexuals
are protected under the laws of the United States. Molathwa submitted to the IJ a
letter from Douglas Jensen, Molathwa’s psychotherapist, who opines it is likely
Molathwa’s depressive symptoms may have contributed to his failure to file for
asylum in a timely manner.

        The IJ held Molathwa failed to file his asylum application in a timely manner
and failed to meet the extraordinary circumstances standard for excusing the untimely
filing of an asylum application. Alternatively, the IJ determined that, although he
found Molathwa’s testimony credible, Molathwa did not suffer past persecution or
have a well-founded fear of future persecution on account of his sexual orientation.
Based on the same evidence, the IJ denied Molathwa’s request for withholding of
removal. The BIA affirmed the IJ’s decision without opinion, so the IJ’s
determination became the final agency decision. Ngure v. Ashcroft, 367 F.3d 975,
980 (8th Cir. 2004) (citing 8 C.F.R. § 3.1(e)(4)(ii)).

       Molathwa petitions for review of the BIA’s decision to deny his application for
asylum and withholding of removal. Molathwa argues the BIA erred in (1)
summarily affirming the IJ’s decision without a written opinion; (2) concluding
Molathwa failed to show changed circumstances sufficient to excuse his failure to file
a timely application for asylum; and (3) determining Molathwa failed to demonstrate



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it is more likely than not that, if removed to Botswana, he would be subject to
persecution on account of his sexual orientation.

II.    DISCUSSION
       Arguing the BIA misapplied its streamlining regulations when it affirmed the
IJ’s decision without a written opinion, Molathwa asks this court to remand his case
for reconsideration. We generally lack jurisdiction to review the BIA’s decision to
use its streamlined procedure. See Ngure, 367 F.3d at 988 (“[W]e do not agree that
the determination to streamline a particular case is generally amenable to judicial
review.”). Accordingly, the BIA’s decision to streamline Molathwa’s case is immune
from our review. Additionally, the BIA’s streamlined procedures do not violate due
process. Loulou v. Ashcroft, 354 F.3d 706, 709 (8th Cir. 2003). Even if the BIA’s
decision to streamline were reviewable, the BIA did not err in streamlining review of
Molathwa’s case. See 8 C.F.R. § 1003.1(e)(4)(i) (permitting the BIA to affirm
without opinion when it determines the IJ’s decision is correct, any errors are
harmless or nonmaterial, and the issues are either squarely controlled by precedent
or are not so substantial that the case warrants issuance of a written opinion).

       Molathwa also argues the BIA erred in finding his application for asylum is
time-barred. To be eligible for asylum, an applicant must file his application within
one year of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). An applicant’s
failure to file a timely application for asylum will be excused only if he can show
“either the existence of changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating to the delay in filing.”
8 U.S.C. § 1158(a)(2)(D). Molathwa contends his application for asylum is not
barred by the one-year deadline because of “changed circumstances.” Congress,
however, has barred judicial review of the BIA’s denial of asylum based on an
applicant’s failure to file a timely application. Section 1158(a)(3) provides “[n]o
court shall have jurisdiction” to review a determination by the Attorney General that
an application is untimely. 8 U.S.C. § 1158(a)(3). Because Molathwa’s asylum claim

                                          -4-
was denied as untimely, we lack jurisdiction to review the BIA’s determination that
he did not demonstrate changed circumstances. Ngure, 367 F.3d at 989 (citing
Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir. 2001)).


      Finally, Molathwa contends the BIA erred in denying his request for
withholding of removal. An application for withholding of removal is not subject to
a one-year filing deadline. Id. We review for substantial evidence the BIA’s
determination an alien is not eligible for withholding of removal, and we may
overturn the BIA’s determination only if “the evidence was so compelling that no
reasonable fact finder could fail to find the requisite fear of persecution.”
Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir. 2002) (citation omitted).


       To be eligible for withholding of removal, Molathwa must show an objectively
established, clear probability he would suffer future persecution in Botswana because
of his race, religion, nationality, membership in a particular social group, or political
opinion. Al Tawm v. Ashcroft, 363 F.3d 740, 744 (8th Cir. 2004); Ngure, 367 F.3d
at 989. In other words, Molathwa must present evidence it is “more likely than not
that [he] would be subject to persecution” because of his membership in a particular
social group. Al Tawm, 363 F.3d at 744 (citation omitted). We will assume, for
purposes of Molathwa’s appeal, homosexuals are a particular social group eligible for
relief. See Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir. 2000).


       We agree with the IJ and the BIA that Molathwa did not prove it was more
likely than not he would be subject to persecution in Botswana. Molathwa asserts he
was “harassed personally by the police.” However, the officers’ warrantless entry
into Molathwa’s and Berger’s apartment in Botswana was an isolated event and did
not involve violence, threats, intimidation, detention, or even a search. Homosexual
conduct is criminal in Botswana, as it was until recently in some jurisdictions within


                                           -5-
the United States, but Molathwa was never charged with a crime in Botswana.
Molathwa also testified about two incidents involving mistreatment of homosexuals
in Botswana: (1) the incident in which Molathwa’s friend was beaten by relatives
because of his sexual orientation; and (2) the man who was incarcerated for two days
after being caught engaging in homosexual activity. However, these incidents do not
show any pattern of harassing homosexuals in Botswana. We conclude substantial
evidence supports the BIA’s determination Molathwa presented insufficient evidence
to show he was subjected to harassment or mistreatment by the Botswana government
or the general public, and nothing in the record suggests Molathwa now would be the
target of persecution if he is removed to Botswana.


III.   CONCLUSION
       Accordingly, we deny Molathwa’s petition for judicial review.
                      ______________________________




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