Phillip Mounir Eskander Abdelm Essih v. Atto Rn Ey General O Fthe United States

The Honorable M onroe G. M cKay, United States Circuit Judge for the*
Tenth Circuit, sitting by designation.
NOT PRECEDENTIAL
UN ITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-4244
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PHILLIP M OUNIR ESKANDER ABDELM ESSIH
Petitioner
v.
ATTO RN EY GENERAL O F THE U NITED STATES,
Respondent
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On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A77 039 302)
Immigration Judge Eugene Pugliese
_________
Submitted Under Third Circuit LAR 34.1(a)
September 15, 2006
Before: FUENTES, FISHER and M cKAY, Circuit Judges.*
(Filed November 6, 2006)
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OPINION O F THE COURT
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M cKAY, Circuit Judge.
Petitioner is an Egyptian citizen who overstayed his visitor’s visa by a
period of seven years. In appropriate proceedings, he was ordered removed after
he admitted all relevant factual allegations against him and conceded
removability. In an attempt at avoiding removal, he requested asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”), all of which were denied by the Immigration Judge (“IJ”) and affirmed
by the Board of Immigration Appeals (“BIA”) without opinion. This appeal
challenges those denials.
It is clear that we lack jurisdiction to review the IJ’s denial of Petitioner’s
asylum application because the application was filed more than one year after
Petitioner’s arrival in the United States. See IN A § 208(a)(3), 8 U.S.C. §
1158(a)(3). Our lack of jurisdiction applies both to the timeliness and to the
exception for “extraordinary circumstances,” which would excuse late filing. See
Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003); see also Sukwanputra
v. Gonzales, 434 F.3d 627, 633-35 (3d Cir. 2006) (finding that Tarrawally
remains good law despite enactment of the REAL ID Act).
For a withholding of removal claim, the applicant must demonstrate a
“clear probability” of persecution if removed, INS v. Stevic, 467 U.S. 407, 413

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(1984); in other w ords, persecution must be more likely than not, id. at 430. To
qualify for protection under the CAT, the applicant must demonstrate that it is
more likely than not that he will be tortured if removed. Ayuk Ako Obale v.
Attorney Gen. of the United States, 453 F.3d 151, 161 (3d Cir. 2006). Our review
is limited to determining whether the IJ’s denial of these claims was supported by
substantial evidence.
Petitioner testified at his immigration hearing that he sold cigarettes and
liquor in Egypt. He claimed that in 1994 he was threatened by members of the
Islamic Jihad, who told him to stop selling alcohol and to convert to Islam. On
one occasion, he and his driver were beaten by Islamic Jihad members. Petitioner
reported this incident to the police, but they refused to take a report because he
was Christian. A doctor treated his injuries but did not write a report because he
was afraid to state that he had treated a Christian. In 1995, a man held a knife to
Petitioner’s neck and told him that he would be killed if he did not convert to
Islam. Petitioner agreed to convert, but then stalled the Jihadists for several
months until he was able to leave the country.
The IJ concluded that Petitioner had not satisfied the standard for
withholding of removal or relief under the CAT. The IJ explained that Petitioner
did not provide medical evidence of injuries or any evidence of torture and that he
still has relatives who remain in Egypt unharmed. Further, Petitioner did not

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attempt to relocate in order to avoid the people who were threatening him. M ore
generally, the IJ found that Petitioner’s story was vague and fragmented,
suggesting that he was not telling the truth. After a thorough and careful review
of the record, we are satisfied that substantial evidence supported the conclusion
that Petitioner was not entitled to withholding of removal or relief under the CAT.

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