Tirtakusumah v. Attorney General , 209 F. App'x 115 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-21-2006
Tirtakusumah v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5573
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-5573
________________
MICHAEL TIRTAKUSUMAH,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A96 203 262)
Immigration Judge: Honorable Miriam K. Mills
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
December 1, 2006
Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES
(Filed: December 21, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
Michael Tirtakusumah, a citizen of Indonesia, seeks review of a final order of
removal issued by the Board of Immigration Appeals (BIA). For the reasons that follow,
we will dismiss the petition in part for lack of jurisdiction. To the extent we have
jurisdiction, we will deny the petition.
Tirtakusumah arrived in the United States as a visitor in December 2001. He
overstayed his visa and was charged in March 2003 with removability on this basis.
Tirtakusumah applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT), claiming persecution and torture on account of his
ethnicity (Chinese) and religion (Catholic). The Immigration Judge (IJ) denied the
asylum application as untimely and denied withholding and CAT relief on the merits.
The BIA affirmed. Tirtakusumah now petitions for judicial review.
To the extent Tirtakusumah seeks review of the denial of his asylum application as
untimely, the Attorney General moves to dismiss for lack of jurisdiction. Under the
Immigration and Nationality Act, “[n]o court shall have jurisdiction to review any
determination of the Attorney General” that an asylum application is untimely. 8 U.S.C.
§ 1158(a)(3). Section 1158(a)(3) thus deprives us of jurisdiction to review a
determination “that an asylum petition was not filed within the one year limitations
period, and that such period was not tolled by extraordinary circumstances.” Tarrawally
v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). Section 1158(a)(3) notwithstanding, we
retain jurisdiction to review constitutional claims and questions of law. See 8 U.S.C. §
1252(a)(2)(D); Sukwanputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir. 2006). Even so,
Tirtakusumah presents no constitutional claims or questions of law regarding the denial of
his asylum application as untimely. Accordingly, we will grant the Attorney General’s
2
motion to dismiss to the extent Tirtakusumah seeks review of the denial of his asylum
application.
We nonetheless retain jurisdiction to review the denial of statutory withholding of
removal and the denial of relief under the CAT. See Tarrawally, 338 F.3d at 186. We
review the BIA’s denial of withholding of removal and CAT relief for substantial
evidence and will uphold the BIA’s determinations “unless the evidence not only supports
a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.
2003).
In order to obtain statutory withholding of removal, Tirtakusumah must
demonstrate that his life or freedom would be threatened in Indonesia because of his
ethnicity or religion. See 8 U.S.C. § 1231(b)(3)(A). This requires him to show “that it is
more likely than not that he will face persecution” if removed. Miah v. Ashcroft, 346
F.3d 434, 439 (3d Cir. 2003). In order to obtain CAT relief, Tirtakusumah must show
that it is more likely than not that he will be tortured if removed to Indonesia. See 8
C.F.R. § 1208.16(c)(2); Zubeda, 333 F.3d at 471.
We have reviewed the record as a whole and find reasonable, substantial, and
probative evidence to support the BIA’s decision. We agree with the IJ and the BIA that
Tirtakusumah failed to provide evidence that he was persecuted or tortured in Indonesia
on the basis of ethnicity or religion, or that his life or freedom will be threatened, or that
he will be tortured if returned to Indonesia. In other words, the evidence of record does
not compel a conclusion contrary to that of the BIA or the IJ.
3
In sum, to the extent that Tirtakusumah seeks review of the denial of his asylum
application as untimely, we grant the Attorney General’s motion to dismiss for lack of
jurisdiction. In all other respects, we will deny the petition for review.1
1
Tirtakusumah’s opening brief was prepared by counsel, who withdrew before the case
was submitted to this panel. We agree with the Attorney General’s assessment of the
brief submitted by Tirtakusumah’s former attorney. That brief was totally inadequate.
We commend counsel for the Attorney General for thoroughly briefing the potential
issues in this case.