United States 8th Circuit Court of Appeals Reports

JALLOW v. GONZALES, 06-1610 (8th Cir. 1-4-2007) Ebrima
Jallow, Petitioner, v. Alberto Gonzales, Attorney General of
the United States of America, Respondent. No. 06-1610.
United States Court of Appeals, Eighth Circuit. Submitted:
October 16, 2006. Filed: January 4, 2007.

Petition for Review of a Final Decision of the Board of
Immigration Appeals.

Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Ebrima Jallow, a native and citizen of Gambia, petitioned
for asylum and relief under the Convention Against Torture
(CAT). The Immigration Judge (IJ) denied his asylum petition
as untimely and the other claims as without merit. The Board
of Immigration Appeals (BIA) affirmed. Jallow now seeks a
review. We deny the petition for review.

I. Background

Jallow was placed in removal proceedings six months after
the expiration of his temporary visa. Jallow conceded that
he was removable but petitioned for asylum and relief under
CAT. Jallow claimed political persecution because of his
membership in the United Democratic Party, Gambia’s main
opposition political party. Jallow also claimed to have
twice been confronted by members of the controlling party;
however, he admitted that he was not injured in either
incident.

The IJ determined that Jallow’s petition for asylum was
time barred. The IJ also found that Jallow’s other claims
lacked credibility and denied him relief under CAT. The BIA
affirmed.

II. Discussion

We review questions of immigration law de novo. Tang v.
INS, 223 F.3d 713, 718-19 (8th Cir. 2000). We review an IJ’s
factual credibility determinations under the substantial
evidence test, which requires that factual determinations be
supported by reasonable, substantial, and probative
evidence. Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir.
2002). We will reverse factual findings “only if the
petitioner demonstrates that the evidence was so compelling
that no reasonable fact finder could fail to find in favor
of the petitioner.” Turay v. Ashcroft, 405 F.3d 663, 667
(8th Cir. 2005).

A. Asylum

Jallow argues that the IJ erred in concluding that his
application for asylum was time barred. An application for
asylum will not be considered unless it is filed within one
year of an alien’s arrival in the United States. 8 U.S.C.
§ 1158(a)(2)(B). There are, however, two exceptions
to this rule. First, an application for asylum will be
considered if the alien demonstrates changed circumstances
materially affecting eligibility for asylum. Id. §
1158(a)(2)(D). Second, an application for asylum will be
considered if the alien demonstrates that the delay in
filing was related to extraordinary circumstances. Id.
“Congress . . . has precluded judicial review of the
Attorney General’s determination that an alien did not
demonstrate changed or extraordinary circumstances relating
to the delay in filing an asylum application.” Ngure v.
Ashcroft, 367 F.3d 975, 989 (8th Cir. 2004).

Jallow concedes that he did not apply for asylum within one
year of his arrival. Therefore, we may review his asylum
claim only if he qualifies under one of the statutory
exemptions. The IJ determined that he does not, and we are
precluded from reviewing that determination because it is
committed to the discretion of the Attorney General. Because
we lack jurisdiction, Jallow’s petition for asylum is
dismissed.

B. Convention Against Torture

Although we lack jurisdiction to review Jallow’s claim for
asylum, we do have jurisdiction to review the denial of his
request for protection under CAT. Mompongo v. Gonzales, 406
F.3d 512, 514 (8th Cir. 2005). To qualify for protection
under CAT, Jallow must “establish that it is more likely
than not that he . . . would be tortured if removed to the
proposed country of removal.” 8 C.F.R. §§
1208.16(c)(2), 1208.18. Torture is defined as an act causing
severe pain or suffering inflicted by or with the
acquiescence of a person acting in an official capacity. Id.
§ 208.18(a)(1). It is limited to “extreme form[s] of
cruel and inhuman treatment.” Id. § 208.18(a)(2). “We
will overturn the IJ’s denial of withholding of removal or
protection under the CAT only if the evidence is so
compelling that no reasonable factfinder would have denied
relief.” Mompongo, 406 F.3d at 514.

The IJ found that Jallow did not present credible evidence
that he would be tortured if returned to Gambia. In support
of his petition, Jallow submitted a United Democratic Party
membership card. The IJ concluded that the card was obtained
solely for the purpose of supporting his asylum
petition.[fn1] The IJ stated that the card purported to be
issued in 1997 but had no place to record membership dues
for 1997, 1998, 1999, or 2000. The IJ also noted that the
card was authenticated by Jallow’s close friend, whose
authority to authenticate party membership was questionable.
Several other documents that Jallow supplied suffered from
similar defects.

We defer to an IJ’s finding regarding a petitioner’s
credibility, if that finding is supported by specific,
cogent reasons. Mohamed v. Ashcroft, 396 F.3d 999, 1003 (8th
Cir. 2005). “It is well settled that ‘an immigration judge
is in the best position to make credibility findings because
he sees the witness as the testimony is given.'” Mayo v.
Ashcroft, 317 F.3d 867, 871 (8th Cir. 2003) (quoting
Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994)). Here,
the IJ’s credibility findings are supported by sufficient
record evidence. Jallow provides no justification for us to
disturb them.

Even if Jallow were to conclusively establish that he was a
member of the United Democratic Party, his petition for
relief under CAT would still fail. Jallow conceded that he
was never physically injured in either of the two encounters
that he recounted to the IJ. Jallow also admitted that he
was able to live in a different part of Gambia without
incident. These admissions, combined with a report from the
State Department stating that Gambia had a general respect
for human rights, led the IJ to deny Jallow relief under
CAT. We cannot say that the evidence is so compelling in
Jallow’s favor that no reasonable factfinder would have
denied relief.

III. Conclusion

Because we lack jurisdiction, Jallow’s asylum petition is
dismissed. For the reasons stated above, his petition for
CAT relief is denied.

[fn1] In affirming the IJ’s findings, the BIA noted, “No
single concern would lead us to conclude that the
respondent’s story is untrue, but the constellation of
problems described by the Immigration Judge lead us to agree
that the respondent has not met his burden of proof to
establish his eligibility for relief from removal.”