Timothy A. Francis v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY A. FRANCIS,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 14-73123
Agency No. A205-491-015
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 12, 2018
Seattle, Washington
Before: TASHIMA and GRABER, Circuit Judges, and MIHM,** District Judge.
Timothy A. Francis, a native and citizen of Singapore, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying asylum, withholding of removal, and
Convention Against Torture (“CAT”) relief. Our jurisdiction is governed by 8
FILED
APR 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael M. Mihm, United States District Judge for the
Central District of Illinois, sitting by designation.

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U.S.C. § 1252. We review de novo questions of law and for substantial evidence
the agency’s factual findings. Zetino v. Holder, 622 F.3d 1007, 1011–12 (9th Cir.
2010). We deny in part and dismiss in part the petition for review.
Petitioner has exhausted all administrative remedies, as the merits of his case
were heard before both the BIA and the IJ. Abebe v. Gonzales, 432 F.3d 1037,
1041 (9th Cir. 2005) (en banc).
We lack jurisdiction to consider Petitioner’s request to review the BIA’s
determination that his asylum claim was untimely. Because the underlying facts
are disputed, we lack jurisdiction to review the BIA’s “extraordinary
circumstances” determination. Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir.
2013). Therefore, review of this claim must be dismissed.
As to Petitioner’s claim for withholding of removal, substantial evidence
supports the BIA’s finding that the record did not establish any nexus between
Petitioner’s beliefs on caning and a social group or political opinion. Parussimova
v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009). The record supports the
conclusion that any caning sentence imposed would result from Petitioner’s
desertion from the military. The withholding claim is therefore denied.
Substantial evidence also supports the BIA’s denial of CAT relief because
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Petitioner failed to show that caning—assuming, but not deciding, that it
would be torture—is more likely than not to occur if he is sent back to Singapore.
8 C.F.R. § 208.16(c)(2); Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).
Here, to satisfy his burden of proof under CAT, Petitioner must establish that each
of the following elements in a hypothetical chain of events is more likely than not
to occur: 1) he would be prosecuted for desertion; 2) a military court would find
him guilty; 3) his sentence would include caning; 4) the caning would be carried
out.1 The BIA permissibly concluded that he failed to do so.
Petitioner’s expert opined that there was a “real possibility” or a “real
likelihood” that he would be sentenced to caning, but that opinion is not enough to
meet Petitioner’s burden, especially since the expert could not cite any cases in
which caning was imposed for an offense involving only desertion. The CAT
claim is therefore denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
1The particulars of the caning sentence may also be relevant on review, e.g.,
the size and type of cane used and the number of lashes to be administered.
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