Juliet Nabaggala Kaweesa v. Alberto R. Gonzales, U.s. Attorney General

* Pursuant to 5th Cir. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 10, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60364
JULIET NABAGGALA KAWEESA,
Petitioner,
v.
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review from an Order of
the Board of Immigration Appeals
(A97 198 535)
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner Juliet Nabaggala Kaweesa is a native and citizen of
Uganda. She entered the United States on or about November 5, 2000
as a nonimmigrant with authorization to remain for a temporary
period. She overstayed. She seeks review of a Board of
Immigration Appeals’s order denying her applications for asylum and
withholding of removal. For the reasons below, we dismiss the

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asylum claim and deny the petition with respect to the remaining
claims.
I. Background
On June 3, 2003, while in the United States, Kaweesa was
served with a Notice to Appear, alleging she was removable because
she remained in the country longer than permitted. At the hearing,
Kaweesa admitted to the allegations contained in the Notice, and
the Immigration Judge (“IJ”) found her removable. She subsequently
filed an asylum application on May 2, 2003—more than one year after
her entry into the United States. See 8 U.S.C. § 1158(a)(2)
(1997). On October 21, 2003, the IJ held a merits hearing on the
asylum application. The IJ denied Kaweesa’s requests for asylum
and withholding of removal including relief under the Convention
Against Torture (“CAT”) but granted her voluntary departure.
On November 12, 2003, Kaweesa appealed the IJ’s decision to
the Board of Immigration Appeals (“BIA”). She argued that the IJ
erred in finding her asylum application untimely. On March 31,
2005, the BIA issued an opinion affirming and adopting the IJ’s
decision. The BIA found that the IJ correctly ruled that she
failed to file her asylum application within one year of her last
entry into the United States, citing 8 U.S.C. § 1158(a)(2) (1997)
and 8 C.F.R. § 1208.4 (2004), and failed to show that extraordinary
circumstances precluded a timely filing. Additionally, the BIA

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concurred with the IJ that Kaweesa was not entitled to withholding
of removal including relief under CAT.
II. Discussion
A. JURISDICTION TO HEAR ASYLUM CLAIM
Kaweesa claims that the IJ and BIA erred in denying her asylum
claim due to its untimeliness. To be eligible for asylum, an alien
must file, absent changed or extraordinary circumstances, an asylum
application within one year of arriving in the United States. 8
U.S.C. § 1158(a)(2). In the instant case, the BIA explicitly
stated in its opinion that the IJ “was correct in pretermitting
[Kaweesa’s] application for asylum . . . . [She] failed to filed
an application for asylum . . . within one year of last entry, and
failed to show extraordinary circumstances relating to the delay or
worsened country conditions.”
This Court lacks jurisdiction to review the asylum claim
because the BIA found those claims time barred. See 8 U.S.C. §
1158(a)(3) (“No court shall have jurisdiction to review any
determination of the Attorney General under paragraph (2)
[providing for exceptions, including the time bar, to an alien’s
right to apply for asylum].”); see also Zhu v. Ashcroft, 382 F.3d
521, 527 (5th Cir. 2005) (remanding to the BIA because its
affirmance without opinion left the court with “no way of knowing
whether the BIA affirmed the IJ’s decision on a nonreviewable

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basis, i.e., untimeliness, or a reviewable basis, i.e., the merits
of [the] asylum claim”).
B. WITHHOLDING OF REMOVAL
1. Standard of Review
Because the BIA adopted and elaborated on the IJ’s decision,
we review both the decisions of the IJ and the BIA. See Girma v.
INS, 283 F.3d 664, 666 (5th Cir. 2002); Mikhael v. INS, 115 F.3d
299, 302 (5th Cir. 1997). Factual findings are reviewed for
substantial evidence. See Zhang v. Gonzales, 432 F.3d 339, 343–44
(5th Cir. 2005). Under the substantial evidence standard,
“reversal [of the IJ] is improper unless we decide ‘not only that
the evidence supports a contrary conclusion, but [also] that the
evidence compels it.’” Id. at 344 (quoting Zhao v. Gonzales, 404
F.3d 295, 306 (5th Cir. 2005)). In other words, the alien bears
the burden of proving the requisite compelling nature of the
evidence. See Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
2. Analysis
Before the IJ, Kaweesa claimed she would be persecuted by the
Ugandan government upon return on account of her political opinion
due to her husband’s activities with the Allied Democratic Front
(“ADF”). She also testified that she was unsure of her husband’s
whereabouts, believing him to be deceased, and that she had five
children living with relatives in Uganda. Samuel Ndawula, a former
neighbor in Uganda who now resides in the United States, testified

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on her behalf. The IJ found Kaweesa’s story to be “fairly
plausible” and noted one inconsistency regarding the duration of
time she spent at an ADF training camp.
To obtain withholding of removal under the Immigration and
Nationality Act, an applicant “must show that it is more likely
than not that his life or freedom would be threatened by
persecution” based on his political opinion, race, religion,
nationality, or membership in a particular social group. Efe v.
Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002) (quotation omitted).
Under CAT, the alien must show that “it is more likely than not
that he or she would be tortured if removed to the proposed country
of removal.” Id. at 907.
Kaweesa contends the BIA erred by affirming the IJ’s
determinations that she had not shown it was more likely than not
she would be subjected to persecution or targeted for torture
because of her husband’s political activities if she returned to
Uganda. The record reflects that Kaweesa was subjected to three
interrogations by the government regarding her husband’s
whereabouts. During the first two, government soldiers came to her
home, interrogated her, and struck her. As to the third incident,
she was detained overnight in military barracks with one or two
dead bodies and her life was threatened. She was not physically
harmed. She subsequently was released and she relocated to an ADF
training camp. The camp was raided by the government, and Kaweesa

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and her husband escaped. During this time, though, Kaweesa held a
job with the government at the Uganda Development Bank.
Additionally, she was able to obtain a visa and enter and leave
Uganda using her own passport without incident. The record does
not compel a finding that Kaweesa more likely than not will suffer
persecution upon return to Uganda. She also fails to meet the
“higher bar” of showing that she will be tortured. Id. at 907.
Accordingly, she has failed to show the BIA’s decision was not
supported by substantial evidence. See Mikhael, 115 F.3d at 302.
III. Conclusion
This Court lacks jurisdiction to hear Kaweesa’s asylum claim,
and this claim therefore is DISMISSED. Substantial evidence
supports the BIA’s and IJ’s withholding of removal determinations.
Accordingly, Kaweesa’s petition for review of the withholding of
removal claims is DENIED.
DISMISSED in part; DENIED in part.

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