Lalu Rusmayadi v. Eric Holder, Jr.


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A098-575-861 Copies to all parties and the district court/agency. [998452988] [10-1236]

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Lalu Rusmayadi v. Eric Holder, Jr. Doc. 0 Case: 10-1236 Document: 27 Date Filed: 10/26/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1236 LALU RUSMAYADI, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 27, 2010 Decided: October 26, 2010 Before MOTZ, AGEE, and WYNN, Circuit Judges. Petition dismissed in part and denied in part by unpublished per curiam opinion. Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville, Maryland, for Petitioner. Tony West, Assistant Attorney General, John S. Hogan, Senior Litigation Counsel, Aimee J. Frederickson, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. Case: 10-1236 Document: 27 Date Filed: 10/26/2010 Page: 2 PER CURIAM: Lalu Rusmayadi, a native and citizen of Indonesia, petitions for review of an order of the Board of Immigration Appeals ("Board") denying his applications for asylum, withholding from removal and withholding under the Convention Against Torture ("CAT"). the petition for review. Rusmayadi's application for asylum was denied because it was not filed within one year of his arrival in the United States and he failed to the show late changed filing. or extraordinary 8 U.S.C. We dismiss in part and deny in part circumstances excusing Under 1158(a)(3) (2006), the Attorney General's decision regarding whether an alien has complied with the one-year time limit for filing an application for asylum or has established changed or extraordinary circumstances justifying waiver of that time limit is not reviewable by any court. See Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004) (collecting cases holding that this jurisdiction-stripping provision precludes judicial review). have held that we lack jurisdiction to review an We asylum application denied as untimely. 505, 510 n.5 (4th Cir. 2007). jurisdiction to review the Niang v. Gonzales, 492 F.3d We have also held that we lack judge's discretionary immigration factual determination that the alien failed to establish changed or extraordinary circumstances excusing the late filing of the 2 Case: 10-1236 Document: 27 Date Filed: 10/26/2010 Page: 3 asylum application. Gomis v. Holder, 571 F.3d 353, 358-59 (4th Because we Cir. 2009), cert. denied, 130 S. Ct. 1084 (2010). are without jurisdiction to review the denial of the untimely asylum application, we dismiss the petition for review from that part of the Board's order. To establish eligibility for withholding of removal, an alien must show a clear probability that, if he was removed to his native country, his "life or freedom would be threatened" on a protected ground. 8 U.S.C. 1231(b)(3)(A) (2006); see A "clear Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). probability" means that it is more likely than not that the alien would be subject to persecution. 407, 429-30 (1984). INS v. Stevic, 467 U.S. The protected ground must be a central A central reason is reason for being targeted for persecution. one that is more than "`incidental, tangential, superficial, or subordinate to another reason for harm.'" See Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009) (quoting In re J-BN-, 24 I. & N. Dec. 208, 214 (BIA 2007)). Unlike asylum, withholding of removal is mandatory for anyone who establishes that their "life or freedom would be threatened . . . because of [their] race, religion, nationality, membership in a particular social group, or political opinion." (2006). 8 U.S.C. 1231(b)(3)(A) A determination regarding eligibility for withholding of removal is conclusive if supported by substantial evidence on 3 Case: 10-1236 Document: 27 Date Filed: 10/26/2010 Page: 4 the record considered as a whole. U.S. 478, 481 (1992). INS v. Elias-Zacarias, 502 Additionally, in order to receive relief under the CAT, Rusmayadi must show it "is more likely than not" he will be tortured if he returns to Indonesia. 8 C.F.R. 1208.16(c) (2010). He must further show the torture will be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." We 8 C.F.R. 1208.18(a)(1) (2010). that the Board's decision denying the conclude applications for withholding from removal and withholding under the CAT is supported by substantial evidence. We note that in addition to the finding that Rusmayadi failed to establish he was targeted because of a protected ground, such as membership in a particular social group, the Board also found Rusmayadi could relocate in Indonesia and avoid the threat of persecution. See 8 C.F.R. 1208.16(b)(1)(i)(B), (c)(3)(ii). particular opening finding he was has not challenged review by by Because this in his See Rusmayadi this court. brief, waived Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001). Accordingly, we deny the petition for review from that part of the Board's order denying withholding from removal and withholding under the CAT. We dismiss in part and deny in part the petition for review. We dispense with oral argument because the facts and 4 Case: 10-1236 Document: 27 Date Filed: 10/26/2010 Page: 5 legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. PETITION DISMISSED IN PART AND DENIED IN PART 5

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