Sahande v. Gonzales ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2255
SY ISMAILA SAHANDE; VIVIANE AHOU YAO,
Petitioners,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-547-375; A95-547-376)
Submitted: August 19, 2005 Decided: October 11, 2005
Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Sy Ismaila Sahande, Viviane Ahou Yao, Petitioners Pro Se.
M. Jocelyn Lopez Wright, Wanda Evans, Office of Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sy Ismaila Sahande and Viviane Ahou Yao, natives and
citizens of the Ivory Coast, petition for review of an order of the
Board of Immigration Appeals (Board) dismissing their appeal from
the immigration judge's denial of asylum, withholding of removal,
and protection under the Convention Against Torture. We conclude
that they are not entitled to relief from this court.
In their petition for review, Sahande and Yao contend
that they established their eligibility for asylum relief. The
record reveals, however, that the immigration judge denied asylum
relief on the ground that Sahande failed to demonstrate by clear
and convincing evidence that he filed his application within one
year of the date of his arrival in the United States, see 8 U.S.C.
§ 1158(a)(2)(B) (2000), as amended by the REAL ID Act of 2005, Pub.
L. No. 109-13, 119 Stat. 231, and failed to allege any “changed” or
“extraordinary” circumstances that would excuse his late filing, 8
U.S.C. § 1158(a)(2)(D). We therefore lack jurisdiction to review
this determination pursuant to 8 U.S.C. § 1158(a)(3). See Zaidi v.
Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004) (holding that
section 1158(a)(3) precludes court from reviewing immigration
judge’s finding that a petition for asylum is barred because
untimely) (collecting cases). Given this jurisdictional bar, we
cannot review the underlying merits of Sahande’s asylum claim.
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Sahande and Yao contend that the Board’s decision to
adopt and affirm the immigration judge’s decision violated their
right to due process of law. However, they fail to establish
either that they were prejudiced by the Board’s decision to adopt
the reasoning of the immigration judge, see Rusu v. INS, 296 F.3d
316, 324-25 (4th Cir. 2002) (holding that to prevail on a
procedural due process claim, an alien must “show that better
procedures are likely to have made a difference in the outcome of
his hearing”), or that the Board’s summary affirmance was
constitutionally deficient, see Blanco de Belbruno v. Ashcroft, 362
F.3d 272, 282-83 (4th Cir. 2004) (finding that Board’s affirmance
without opinion satisfies due process where immigration judge’s
opinion may be meaningfully reviewed). We therefore find that they
are not entitled to relief on this claim.
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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