Xiao Feng Jiang v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 21, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
XIAO FENG JIANG,
Petitioner,
v. No. 05-9518
(No. A95-450-316)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General,
Respondent.
ORDER AND JUDGMENT *
Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Xiao Feng Jiang petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming the immigration judge’s (IJ) denial of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
petitioner’s application for asylum and withholding of removal. 1 The BIA
affirmed the denial of petitioner’s asylum application because he failed to
establish that he filed his application within the one-year filing period. We lack
jurisdiction to review the BIA’s determination that petitioner is ineligible for
asylum because his application was untimely. Tsevegmid v. Ashcroft, 336 F.3d
1231, 1234-35 (10th Cir. 2003); 8 U.S.C. § 1158(a)(3).
The BIA also denied petitioner relief in the form of withholding of
removal. Although petitioner had not challenged the IJ’s denial of this relief in
his briefing before the BIA, the BIA sua sponte decided the issue and denied
relief. Petitioner, however, has not presented any argument on withholding of
removal in his briefing before this court; his appellate brief focuses solely on the
merits of his asylum claim, see Aplt. Br. at 13-21. “Issues not raised in the
opening brief are deemed abandoned or waived.” Tran v. Trs. of State Colls. in
Colo., 355 F.3d 1263 (10th Cir. 2004) (quotation omitted). Accordingly,
petitioner’s withholding of removal claim is waived.
1
The IJ also denied relief under the Convention Against Torture, but
petitioner did not challenge that ruling before the BIA; therefore, we lack
jurisdiction to review it. See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.
1999).
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The judgment of the BIA is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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