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Click here for the full text of this decision FACTS:In 2000, Nasra Arif entered the United States with Mohammad Arif, her husband, and her children and overstayed her visa. In 2003, the Department of Homeland Security served Nasra with a Notice to Appear, asserting that she was removable as an alien who had remained in the United States after the expiration of her visa. DHS consolidated Nasra’s removal proceedings with those of her husband. Although they both conceded removability, Mohammed requested asylum and withholding of removal, listing Nasra as a derivative beneficiary. The government opposed the application for asylum on the basis that it was not received or mailed within one year of Mohammed’s arrival in the United States. The immigration judge determined that Mohammed’s asylum application was untimely and therefore required Nasra to submit her own application for withholding of removal. The IJ concluded that neither Nasra nor Mohammed qualified for withholding of removal, as both failed to demonstrate past persecution or a well-founded fear of future persecution. The IJ did, however, grant Nasra’s request for voluntary departure. On appeal, the Board of Immigration Appeals affirmed the IJ’s holding that Mohammed’s asylum application was untimely and also concluded that Nasra and her husband had failed to demonstrate extraordinary or changed circumstances sufficient to justify the untimely application. After determining that there can be no derivative beneficiaries for a withholding of removal claim, the BIA concluded that Nasra had failed to establish independent eligibility for withholding of removal. The BIA reversed the IJ’s holding as to Mohammed, and remanded his claim for withholding of removal. HOLDING:The court denied Nasra’s petition for review. To be eligible for asylum, the court stated, an alien must file an application within one year following his arrival in the United States unless the applicant can demonstrate “changed circumstances which materially affect[ed] the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application.” If the application for asylum is not received by the DHS within one year following arrival here, but the alien produces clear and convincing evidence that the application was mailed prior to the end of the one-year period, “the mailing date shall be considered the filing date.” The court stated that it lacked jurisdiction to review determinations of timeliness based on findings of fact. Nasra contended that she and her husband timely mailed an asylum application in March 2000. The court found no evidence, however, that DHS received or considered the application. The BIA held that Nasra failed to demonstrate by clear and convincing evidence that her application for asylum was mailed within one year following her arrival in the United States, or extraordinary circumstances excused her failure to file timely. As both of those holdings involved questions of fact, the court found that it lacked jurisdiction to consider the BIA’s denial of Nasra’s claim for asylum. Next, the court stated that to be eligible for withholding of removal under 8 U.S.C. �1231(b)(3), an applicant must demonstrate a “clear probability” of persecution upon return to his native country. A “clear probability” means that it is more likely than not that the applicant’s life or freedom would be threatened by persecution on account of his race, religion, nationality, membership in a particular social group or political opinion. The government, the court stated, may rebut this presumption by demonstrating that there has been a fundamental change in the circumstances of the country of removal, or that the applicant could avoid a future threat to his life or freedom by reasonably relocating to a different part of the country of removal. Nasra did not state an independent ground for withholding of removal, relying instead on her husband’s proffered persecution and insisting that she is a derivative beneficiary of the application filed by her husband. The court agreed with the BIA decision that declined to consider Nasra a derivative beneficiary of her husband’s application on grounds that as a matter of law “there are no derivative beneficiaries for an application for withholding of removal.” The court found no evidence in the language of the statute to indicate that Congress intended to extend the relief afforded by withholding of removal to an alien’s spouse or minor children without an independent ground for granting such relief to them. Moreover, the court noted that the federal regulations governing withholding of removal and asylum indicate that a grant of withholding of removal does not provide relief to the spouse or minor children of an alien. Specifically, 8 C.F.R. �1208.16(e) states that if an applicant is denied asylum as a matter of discretion, but is later granted withholding of removal, “thereby effectively precluding admission of the applicant’s spouse or minor children,” the denial of asylum shall be reconsidered. OPINION:Per curiam; Jones, C.J., and Wiener and Clement, JJ.

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