Lalu Makbul v. Eric Holder, Jr. ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1580
LALU AHMAD MAKBUL,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 12, 2012 Decided: January 31, 2012
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.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, Matthew A.
Connelly, 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Unpublished opinions are not binding precedent in this circuit.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:
Lalu Ahmad Makbul, 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 applications for asylum, withholding
of removal and withholding under the Convention Against Torture
(“CAT”). We deny the petition for review.
The immigration judge denied Makbul’s asylum
application because he filed it more than one year after
entering the United States and he did not show changed country
conditions or extraordinary circumstances that would excuse the
one-year filing period. Under 8 U.S.C. § 1158(a)(3) (2006), the
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
Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009). Although
§ 1252(a)(2)(D) provides that nothing in § 1252(a)(2)(B), (C),
“or in any other provision of this Act . . . which limits or
eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law,” this court
has held that the question of whether an asylum application is
untimely or whether the changed or extraordinary circumstances
exception applies “is a discretionary determination based on
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factual circumstances.” Gomis, 571 F.3d at 358. Accordingly,
“absent a colorable constitutional claim or question of law,
[the court’s] review of the issue is not authorized by
§ 1252(a)(2)(D).” Id.
Because Makbul fails to raise a constitutional claim
or colorable question of law, this court lacks jurisdiction to
review the finding that his asylum application was untimely
filed.
While this court does not have jurisdiction to
consider the denial of Makbul’s untimely application for asylum,
the court retains jurisdiction to consider the denial of his
requests for withholding of removal and protection under the CAT
as these claims are not subject to the one-year time limitation.
See 8 C.F.R. § 1208.4(a) (2011).
“Withholding of removal is available under 8 U.S.C.
§ 1231(b)(3) if the alien shows that it is more likely than not
that h[is] life or freedom would be threatened in the country of
removal because of h[is] race, religion, nationality, membership
in a particular social group, or political opinion.” Gomis, 571
F.3d at 359 (internal quotation marks omitted); see 8 U.S.C.
§ 1231(b)(3) (2006). “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
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grant is mandatory.” Gandziami-Mickhou v. Gonzales, 445 F.3d
351, 353 (4th Cir. 2006) (citations omitted).
This court affords “a high degree of deference” to a
determination that an alien is not eligible for withholding of
removal, and reviews administrative findings of fact under the
substantial evidence standard. Gomis, 571 F.3d at 359. Under
the substantial evidence test, affirmance is mandated “if the
evidence is not ‘so compelling that no reasonable factfinder
could’ agree with the BIA’s factual conclusions.” Gandziami-
Mickhou, 445 F.3d at 354 (quoting Huaman-Cornelio v. Bd. of
Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992)).
We conclude that substantial evidence supports the
finding that Makbul failed to show that he suffered past
persecution or that it was more likely than not that his life or
freedom would be threatened due to a protected ground if he
returns. We also conclude that substantial evidence supports
the Board’s decision that Makbul did not show he was eligible
for relief under the CAT.
Makbul has waived review of the Board’s decision not
to reinstate a period of voluntary departure because in his
brief, he fails to challenge the reasoning behind the Board’s
decision. See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir.
2001).
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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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