                                                                                      FILED
                               NOT FOR PUBLICATION                                     JUL 22 2010

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                               U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



 SENEN GOMEZ,                                           No. 05-76901

                Petitioner,                             Agency No. A096-342-414

   v.

 ERIC H. HOLDER, Jr., Attorney General,
                                                        MEMORANDUM *
                Respondent.



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

                                  Submitted June 8, 2010 **
                                    Pasadena, California

Before: NELSON and GOULD, Circuit Judges, and DOWD, Senior District
Judge.***




         *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
         ***
               The Honorable David D. Dowd, Jr., Senior District Judge for the Northern
District of Ohio, sitting by designation.
         Petitioner Senen Gomez (“Petitioner”), a native and citizen of Colombia,

petitions for review of the decision of the Board of Immigration Appeals (“BIA”)

denying his application for asylum and withholding of removal.1 The BIA

affirmed the decision of the Immigration Judge (“IJ”) that: 1) Petitioner failed to

establish extraordinary or changed circumstances that would excuse his failure to

apply for asylum within one year after entry to the United States, and therefore was

ineligible for asylum; and 2) Petitioner failed to establish past persecution or a

well-founded fear of future persecution based upon one of the statutory grounds

that would entitle him to withholding of removal.

         For the reasons that follow, we DISMISS the petition as to the asylum

application for lack of jurisdiction, and DENY the petition as to the application for

withholding of removal.

A.       The Court Lacks Jurisdiction to Review
         Denial of the Petitioner’s Application for Asylum

         Applicants for asylum must file their application within one year of entry

into the United States unless they can establish changed circumstances in the

applicant’s native country or extraordinary circumstances that prevented timely



        1
            Petitioner’s opening brief asserts that Petitioner requested relief before the Immigration Judge under
Article 3 of the Convention Against Torture, but apparently does not challenge on appeal the agency’s denial of
protection under the Convention Against Torture. Therefore, that issue will not be considered by this Court.


                                                           2
filing. See 8 U.S.C §§ 1158(a)(2)(B), 1158(a)(2)(D); Immigration and Nationality

Act (“INA”) § 208(a)(2)(b), 8. U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 208.4(a)(2).

Included in the statute is a provision that once the Attorney General determines the

timeliness of an asylum application, “[n]o court shall have jurisdiction to review

any determination of the Attorney General under paragraph (2) [of INA §

208(a)(2)].” INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). That provision barred any

review of a determination of the timeliness of an asylum application, including

whether an exception applies due to changed or extraordinary circumstances.

Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002) (“We lack jurisdiction

to review the BIA’s determination that no ‘extraordinary circumstances’ excused

Petitioner’s untimely filing of his application for asylum.”). However, the Real ID

Act of 2005 restored the Court’s jurisdiction over “constitutional claims or

questions of law.” Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)




                                          3
(“Section 106 of the Real ID Act of 2005 restores our jurisdiction over

‘constitutional claims or questions of law.’”).2

         In this case, however, the facts surrounding the issue of “changed

circumstances” were disputed and the IJ was required to make a factual

determination about Petitioner’s intent to return to Colombia before concluding

that the Petitioner’s asylum application was time-barred. Consequently, unlike

Ramadan which involved undisputed facts, this Court lacks jurisdiction to consider

Petitioner’s appeal regarding his asylum application.

         Accordingly, the petition as to Petitioner’s asylum application is

DISMISSED.

B.       IJ’s Denial of Withholding of Removal Supported by Substantial Evidence


         2
             The Ramadan Court held that “questions of law,” as used in section 106, includes questions of “changed
circumstances” pertaining to the timeliness of an asylum application when the facts are undisputed and the question
on appeal pertains to the application of the undisputed facts to the statutory standard. Ramadan v. Gonzales, 479
F.3d at 650 (“W e now hold that ‘questions of law,’ as it is used in section 106, extends to questions involving the
application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law.
Further, we hold that the ‘changed circumstances’ question presented by Ramadan’s petition is a question of the
application of a statutory standard to undisputed facts, over which we have jurisdiction.”). W ith respect to the
petition before it, the Ramadan Court concluded that the petitioner’s “challenge to the IJ’s determination that
Ramadan failed to show changed circumstances” was reviewable as a mixed question of law and fact, defined by the
Supreme Court as questions for which “the historical facts are admitted or established, the rule of law is undisputed,
and the issue is whether the facts satisfy the statutory standard.” Ramadan v. Gonzales, 479 F.3d at 656-67 (“Here,
the factual basis of Ramadan’s petition is undisputed; we only review whether the IJ appropriately determined that
the facts do not constitute ‘changed circumstances’ as defined by the immigration law.”).




                                                           4
         Although the Court does not have jurisdiction to hear Petitioner’s asylum

petition, the Court retains jurisdiction to review the denial of Petitioner’s

application for withholding of removal. In this case regarding the question of

removability, the BIA issued a written per curiam decision adopting and affirming

the decision of the IJ, without separate analysis or opinion, and citing Matter of

Burbano. See Decision of the Board of Immigration Appeals.3 “When the BIA

adopts and affirms the IJ’s decision with a citation to Burbano, and does not

disagree with any part of the IJ’s decision, we review the IJ’s decision as if it were

the decision of the BIA.” Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir.

2010) (citing Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009); Abebe v.

Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc)). Therefore, the standard

of this Court’s review is whether the IJ’s denial of withholding of removal is

supported by “substantial evidence” and the IJ’s decision will be upheld unless the

evidence compels a contrary result. Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.

2001) (superseded by statute on other grounds).




         3
             “Regarding the issues of the respondent’s removability . . . , we adopt and affirm the decision of the
Immigration Judge. See Matter of Burbano, 20 I.&N. Dec. 872, 874 (BIA 1994) (noting that adoption or affirmance
of a decision of an Immigration Judge, in whole or in part, is ‘simply a statement that the Board’s conclusions upon
review of the record coincide with those which the Immigration Judge articulated in his or her decision’).”


                                                             5
      To qualify for withholding of removal, Petitioner must show it is more likely

than not that he will be persecuted upon deportation to his home country on

account of one of five statutorily protected grounds - race, religion, nationality,

membership in a particular social group, or political opinion. INA § 241(b)(3)(A),

8 U.S.C. § 1241(b)(3)(A); 8 C.F.R. § 1208.16(b); INA § 101(a)(42(A), 8 U.S.C. §

1101(a)(42)(A); Navas v. INS, 217 F.3d 646, 654-56 (9th Cir. 2000). In this case,

Petitioner claims that he faces persecution in Colombia because of his political

opinion and membership in a particular social group.

      In Colombia, the Petitioner was subjected to threats and physical abuse by

FARC, an anti-government military group, to obtain money from Petitioner to

support FARC’s cause. Petitioner concedes that he “never claimed to have a

political opinion, whether contradictory to or in favor of FARC.” However,

Petitioner argues that when he refused to provide FARC with money, he was

perceived by FARC as having a political opinion against FARC and in favor of the

government. However, no evidence before the IJ established that FARC’s interest

in Petitioner was attributable to any perceived political opinion, but rather

established that FARC’s threats and abuse were attributable to securing money

from Petitioner. The IJ’s conclusion that money, rather than perceived political

opinion, was the motivation behind FARC’s persecution of Petitioner is supported


                                           6
by substantial evidence, and the record does not compel a contrary conclusion.

         Petitioner also argues that FARC’s persecution was attributable to his

membership in a particular social group.4 In this case, Petitioner identifies two

social groups. The first group is based on his relationship to a wealthy uncle, and

the second group is “well-educated, hardworking middle class” which can afford to

accumulate wealth. Petitioner claims that FARC targeted Petitioner to obtain

money for the FARC cause because of Petitioner’s membership in these groups.

However, the IJ determined that Petitioner’s testimony and State Department

reports established that FARC was seeking to extort money to further their cause

across Colombia from anyone who might have something of value. The IJ’s

conclusion that Petitioner’s experience with FARC extortion was an experience

that was widespread across Colombia, and therefore not attributable to membership

in a particular social group, is supported by substantial evidence in the record, and

the record does not compel a contrary conclusion.



         4
             A “particular social group” is one united by voluntary association or by an innate characteristic that is
fundamental to the identities of its members. See Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000).
The “[k]ey to establishing a ‘particular social group’ is ensuring that the group is narrowly defined.” Ochoa v.
Gonzales, 406 F.3d 1166, 1170-71 (9th Cir. 2005) (business owners in Colombia who rejected demands by narco-
traffickers to participate in illegal activity is too broad to qualify as a particularized social group and have neither a
voluntary relationship nor innate characteristic). However, it is not necessary for this Court to reach the question
whether the two “social groups” advanced by Petitioner in this case constitute protected social groups for purposes
of withholding of removal analysis.


                                                             7
Accordingly, the petition as to withholding of removal is DENIED.

PETITION DISMISSED IN PART AND DENIED IN PART.




                                 8
