Edgar Antonio Murcia-Murgueitio v. U.S. Atty. Gen., (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

A u g u s t 16, 2006

N o . 06-10781 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

B IA Nos. A97-197-124 & A97-197-125

E D G A R ANTONIO MURCIA-MURGUEITIO,

FANNY VALENCIA-REYES,

NATALIA MURCIA-VALENCIA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(A u g u st 16, 2006)

B efo re MARCUS, WILSON and PRYOR, Circuit Judges.

P E R CURIAM:

E d g a r Antonio Murcia-Murgueitio, a native and citizen of Colombia, p e titio n s for review of a decision of the Board of Immigration Appeals that affirm ed the denial of his application for asylum and withholding of removal.

Murcia-Murgueitio alleged that he would suffer persecution at the hands of the N atio n al Liberation Army (ELN) based on his membership in the Conservative P arty and as a member of a family whose members were persecuted by the ELN.

Murcia-Murgueitio argues that the BIA and Immigration Judge erred both because h e (1) established changed circumstances and (2) established that it is more likely th an not that he will be persecuted upon his return to Colombia. We dismiss in p art and deny in part Murcia-Murgueitio's petition.

The BIA affirmed the denial of Murcia-Murgueitio's application for asylum b e c au s e Murcia-Murgueitio filed the application outside of the one-year statutory p e r io d and failed to establish changed circumstances to excuse the late filing. See 8U.S.C. § 1158(a)(2)(D). Section 1158(a)(2)(B) provides that an alien may apply fo r asylum if "the alien demonstrates by clear and convincing evidence that the ap p licatio n has been filed within 1 year after the date of the alien's arrival in the U n ite d States." 8U.S.C. § 1158(a)(2)(B). An alien may apply for asylum after o n e year of arrival if the alien "demonstrates . . . either the existence of changed circu m stan ces which materially affect the applicant's eligibility for asylum or ex trao rd in ary circumstances relating to the delay in filing an application." Id. § 1 1 5 8 (a)(2 )(D ).

We lack jurisdiction to review the denial of Murcia-Murgueitio's application fo r asylum as time-barred. Under section 1158(a)(3), "[n]o court shall have ju r is d ic tio n to review any determination" that an application was untimely or failed to establish changed or extraordinary circumstances to excuse the delay. Id. § 1 1 5 8 (a)(3 ). Although section 1252(a)(2)(D) permits courts to review alleged co n stitu tio n al deprivations and questions of law, Murcia-Murgueitio has not p resen ted an issue of that kind. See id. § 1252(a)(2)(D); Botero v. U.S. Att'y Gen., 4 2 7 F.3d 952 (11th Cir. 2005).

The BIA affirmed the denial of Murcia-Murgueitio's application for w ith h o ld in g of removal because Murcia-Murgueitio failed to establish that he w o u ld more likely than not be persecuted as a member of his family. Because the B IA issued a separate opinion from the IJ, we review the decision of the BIA, e x c ep t to the extent that the BIA expressly adopts the decision of the IJ, Al Najjar v . Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001), and reverse findings of facts "o n ly when the record compels a reversal," Tan v. U.S. Att'y Gen., 446 F.3d 1 3 6 9 , 1374 (11th Cir. 2006). "[A]n alien is entitled to withholding of removal if []h e establishes `that it is more likely than not that []he would be persecuted on acco u n t of race, religion, nationality, membership in a particular social group, or p o litical opinion upon removal to that country.'" Id. at 1375 (quoting 8 C.F.R. § 2 0 8 .1 6 ( b ) ( 2 ) ) .

Murcia-Murgueitio argues that he more likely than not will be persecuted u p o n his return to Colombia because he shares the same last name as his mother an d aunt, who were targeted by the ELN, but substantial evidence supports the fin d in g s of the IJ. Although Murcia-Murgueitio bases his claim on the persecution th at his mother suffered, he personally has never been threatened by the ELN. The reco rd does not compel the conclusion that Murcia-Murgueitio will more likely th an not suffer persecution upon his return to Colombia.

Murcia-Murgueitio's petition is D IS M IS S E D in part and DENIED in part.

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