Nader Ben Ghalba v. Eric Holder, Jr.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT AUG 27 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NADER BEN GHALBA, No. 12-72383

Petitioner, Agency No. A077-304-221

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted August 5, 2014** Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Nader Ben Ghalba (“Ben Ghalba”), a native and citizen of Tunisia, petitions

for review of the Board of Immigration Appeals’ (“BIA”) denial of his applications

for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). Because we lack jurisdiction to review his asylum claim and he

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. has not demonstrated a clear probability of either persecution or torture, we dismiss

Ben Ghalba’s petition in part and deny his petition in part.

The BIA’s conclusion that Ben…

concurring:

I concur in the holding of the disposition with respect to petitioner’s application for withholding of removal and for relief under the Convention Against Torture, but I would deny rather than dismiss his application for asylum.

MEMORANDUM **

Nader Ben Ghalba (“Ben Ghalba”), a native and citizen of Tunisia, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Because we lack jurisdiction to review his asylum claim and he has not demonstrated a clear probability of either persecution or torture, we dismiss Ben Ghalba’s petition in part and deny his petition in part.

The BIA’s conclusion that Ben Ghalba’s untimely asylum application was not filed within a “reasonable period” after “changed circumstances” relied on factual determinations that Ben Ghalba now disputes. For instance, he claims that his religious transformation crossed the threshold necessary to constitute “changed circumstances” in the Spring of 2003. The BIA, however, concluded that Ben Ghalba had “already significantly increased the frequency of his mosque attendance in 2001 and 2002.” Although “religious transformation” and mosque attendance are different concepts, Ben Ghalba’s argument throughout these proceedings has been that his outward displays of religious devotion (ie., mosque attendance and a…