Tjanaka v. Holder , 311 F. App'x 611 ( 2009 )

UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 (“Board”) dismissing his appeal from the immigration
judge’s order denying his asylum application because it was
untimely and denying his applications for withholding from
removal and withholding under the Convention Against Torture
(“CAT”). 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. Under 8 U.S.C. § 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 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); 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 established changed or extraordinary
circumstances excusing untimely filing). Furthermore, Tjanaka
fails to raise a constitutional question or a question of law
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with respect to the denial of asylum relief. See 8 U.S.C. §
1252(a)(2)(D) (2006).
We further find substantial 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
(4th Cir. 2006) (citations omitted). We note Tjanaka failed to
raise the issue of past persecution to the Board. Accordingly,
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.
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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. See 8 C.F.R.
§ 1208.16(c)(2) (2008). We will not review any issue with
respect to the denial of relief under the CAT because Tjanaka
failed to raise the issue on appeal to the Board.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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