John Tjanaka v. Eric Holder, Jr.

Filing 920090213

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1578

JOHN TJANAKA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

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

Submitted:

January 9, 2009

Decided:

February 13, 2009

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Richard W. Moore, Jr., LAW OFFICES OF RICHARD W. MOORE, PA, Towson, Maryland, for Petitioner. Gregory G. Katsas, Assistant Attorney General, Carol Federighi, Senior Litigation Counsel, Andrew B. Insenga, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: John Tjanaka, a native and citizen of Indonesia,

petitions for review of an order of the Board of Immigration Appeals judge's untimely removal ("CAT"). ("Board") order and and dismissing his his his appeal from the immigration it was from

denying denying

asylum

application for

because

applications the

withholding Against

withholding

under

Convention

Torture

We deny the petition for review. We are without jurisdiction to review the Board's

affirmance of the immigration judge's decision denying Tjanaka's asylum application as untimely. (2006), the Attorney General's Under 8 U.S.C. § 1158(a)(3) decision regarding whether an

alien has complied with the one-year time limit for filing an application for asylum or established changed or extraordinary circumstances justifying waiver of that time limit is not

reviewable by any court. 680-81 (7th Cir. 2004)

See Zaidi v. Ashcroft, 377 F.3d 678, (collecting cases holding that this

jurisdiction-stripping provision precludes judicial review); see also Jarbough v. Attorney Gen., 483 F.3d 184, 188-89 (3d Cir. 2007) (holding that, despite REAL ID Act, § 1158(a)(3) continues to divest court of jurisdiction to review factual issues such as whether an alien excusing established untimely changed filing). or extraordinary Tjanaka

circumstances

Furthermore,

fails to raise a constitutional question or a question of law 2

with respect to the denial of asylum relief. 1252(a)(2)(D) (2006). We further find substantial

See 8 U.S.C. §

evidence

supports

the

Board's decision denying Tjanaka's applications for withholding from removal and withholding under the CAT. "To qualify for

withholding of removal, a petitioner must show that he faces a clear probability of persecution because of his race, religion, nationality, membership in a particular social group, or

political opinion."

Rusu v. INS, 296 F.3d 316, 324 n.13 (4th

Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984)); see also 8 U.S.C. § 1231(b)(3)(A) (2006); 8 C.F.R. § 1208.16(b)

(2008). . . . .

"This is a more stringent standard than that for asylum [and], while asylum is discretionary, if an alien

establishes eligibility for withholding of removal, the grant is mandatory." Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 We note Tjanaka failed to Accordingly,

(4th Cir. 2006) (citations omitted).

raise the issue of past persecution to the Board. this court may not review the issue.

See Massis v. Mukasey, __

F.3d __, 2008 WL 5146962, **5-8 (4th Cir. 2008) (court lacks jurisdiction to review an issue not raised on appeal to the Board, citing 8 U.S.C. § 1252(d)(1) (2006)). We find

substantial evidence supports the Board's finding that Tjanaka was not eligible for withholding from removal and the record does not compel a different result. 3

In order to show eligibility for relief under the CAT, Tjanaka must show that it is "more likely than not" that he would be tortured were he to return to Indonesia. § 1208.16(c)(2) (2008). We will not review any See 8 C.F.R. issue with

respect to the denial of relief under the CAT because Tjanaka failed to raise the issue on appeal to the Board. Accordingly, dispense with oral we deny the petition the for facts review. and We legal

argument

because

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED

4