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Lesum v. Barr

United States Court of Appeals, Eighth Circuit

February 15, 2019

Samiul Alim Lesum Petitioner
v.
William P. Barr, Attorney General of the United States Respondent

          Submitted: January 14, 2019

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

          Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         Samiul Alim Lesum filed a petition seeking judicial review of the denial of his application for asylum under 8 U.S.C. § 1158, the denial of his request for withholding of removal under 8 U.S.C. § 1231(b)(3), and the denial of protection under the Convention Against Torture (CAT), 8 C.F.R. § 208.16(c). Having jurisdiction under 8 U.S.C. § 1252, we deny the petition.

         I.

         The Department of Homeland Security initiated removal proceedings against Lesum, a native and citizen of Bangladesh. He had been admitted to the United States as a nonimmigrant student. Although his continued enrollment at a college or university was a condition of his student status, he dropped out of school and remained in the country without authorization. After conceding removability, Lesum applied for asylum, withholding of removal, and protection under CAT, claiming he has suffered and will suffer persecution in Bangladesh because he is gay. Specifically, he claimed that, in Bangladesh, he has suffered discrimination and harassment, he was locked in his dorm room by others for several days, and he was sexually abused by his cousin. Morever, he claimed that members of the LGBT community regularly face threats and acts of violence, one of which resulted in the death of a gay rights activist.

         After "consider[ing] all of the documents in the record," the Immigration Judge (IJ) denied Lesum all three forms of relief. First, the IJ denied his asylum application as untimely because Lesum failed to file his application "within 1 year after [he] arriv[ed] in the United States." 8 U.S.C. § 1158(a)(2)(B). The IJ found Lesum entered the country as a student on January 8, 2016, and thus should have applied for asylum by January 8, 2017. The IJ found Lesum's student status terminated on September 21, 2016, and Lesum filed his application on June 20, 2017. The IJ noted that "[t]he regulations reflect that a person should file for asylum within a reasonable period of time from a status ending" and that "[t]he comments to the regulations reflect that a reasonable period of time is considered to be approximately six months. Six months from the status ending on September 21, 2016 would have been March 21, 2017." The IJ took into account that Lesum was not placed into removal proceedings until April 24, 2017. Lesum claimed his father's death excused his late filing, but the IJ did not find that credible because his father died on August 21, 2016, one month prior to the termination of his student status. Thus, the IJ found a "six- month period of time would have been a reasonable period of time for [Lesum] to have [applied for asylum.]"

         The IJ also denied Lesum's request for withholding of removal and protection under CAT. The IJ believed that Lesum "has suffered discrimination and harassment and [had] been called names" and that "there is harassment and discrimination regarding gays in Bangladesh." However, the IJ also found that Lesum has never been arrested nor charged with a crime; he was not physically harmed when he was locked in his dorm room and later escaped through a window; he has not been physically harmed by the government in Bangladesh; he has not been physically harmed otherwise in Bangladesh, except for the incident with his cousin, which, though "unfortunate," was not persecution but a crime; that, although "sexual acts between males are illegal," "the law is rarely enforced"; and that, despite Bangladesh being "a conservative society in which homophobic attitudes persist with LGBT persons facing discrimination," "tolerance of LGBT persons is improving." The IJ determined that Lesum "has not suffered past persecution" and that, although Lesum "may fear or may suffer from discrimination and harassment in Bangladesh," he "failed to establish that it is more likely than not that he would be persecuted by the government or by someone that the government is unable or unwilling to control . . . ." The IJ found that, "[a]lthough some LGBT persons have reportedly faced harassment by law enforcement officers, this does not in general amount to persecution or serious harm." For these same reasons, the IJ also determined Lesum "failed to establish that it is more likely than not that he would be tortured by the government or somebody acting with the acquiescence of the government," to warrant relief under CAT.

         Lesum appealed the IJ's decision to the Board of Immigration Appeals (BIA), which dismissed the appeal. Lesum argued that the death of his father, which led to his inability to pay for schooling, caused him to lapse into depression, which warranted an extension of more than six months to file for asylum. The BIA found "no reason to disturb" the IJ's determination regarding Lesum's untimely asylum application because Lesum had not provided medical evidence to corroborate his claim that he suffered from depression following his father's death. The BIA agreed with the IJ's determination regarding Lesum's request for withholding of removal because Lesum's allegations did not "ris[e] to the level of persecution." Moreover, the BIA noted that the IJ's determination "reflect[ed] a thorough consideration of the evidence presented" and "weighed all relevant evidence," concluding that the "findings are supported by the record." Finally, with respect to protection under CAT, the BIA explained that, "[w]hile the Department of State Country Reports for Bangladesh reveal discrimination, harassment, and sometimes violence against the LGBT community exists, the reports do not support [Lesum]'s claim that he will more likely than not suffer torture with government acquiescence." This petition for review followed.

         II.

         Lesum challenges the denial of his application for asylum, the denial of his request for withholding of removal, and the denial of protection under CAT. "Where, as here, the BIA has adopted the Immigration Court's opinion and added reasoning and analysis of its own, we review both decisions." Agha v. Holder, 743 F.3d 609, 614 (8th Cir. 2014) (citing Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004)). We review "legal determinations de novo, and factual findings for substantial evidence." Id. (citing Nadeem v. Holder, 599 F.3d 869, 872 (8th Cir. 2010)).

         A.

         Lesum first challenges the denial of his asylum application as untimely. Congress, however, has expressly stated "[n]o court shall have jurisdiction to review any determination of the Attorney General" that an asylum application was untimely filed. Burka v. Sessions, 900 F.3d 575, 576 (8th Cir. 2018) (alteration in original) (quoting 8 U.S.C. § 1158(a)(3)). Notwithstanding § 1158(a)(3), "we may still review 'constitutional claims or questions of law raised upon a petition for review.'" Id. (quoting 8 U.S.C. ยง 1252(a)(2)(D)). Lesum argues the IJ committed legal error because it strictly enforced a six-month deadline to apply for asylum after the ...


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