Karsaev v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 21 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
VLADIMIR MEEROVICH
KARSAEV,
Petitioner,
No. 02-9570
v. (BIA No. A76 948 325)
(Petition for Review)
JOHN ASHCROFT,
Respondent.
ORDER AND JUDGMENT *
Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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 Vladimir Meerovich Karsaev seeks review of a decision of the
Board of Immigration Appeals (BIA) which summarily dismissed his appeal from
an order of an immigration judge (IJ). The IJ denied Mr. Karsaev’s application
for asylum and withholding of removal, reasoning that the application for asylum
was untimely and that Mr. Karsaev had failed to show a clear probability of
persecution sufficient to meet the standard for withholding of removal. We lack
jurisdiction to review the IJ’s determination that the application for asylum was
untimely. We must therefore dismiss the asylum claim. With respect to the
withholding of removal claim, we affirm.
Mr. Karsaev was admitted to the United States from Belarus on or about
July 8, 1994, as a nonimmigrant B1 visitor. He was authorized to remain in this
country until October 9, 1994. He remained in the United States past this date
without permission from the Immigration and Naturalization Service or its
successor, the Department of Homeland Security. He concedes the charge of
overstaying his visa.
Congress has imposed a one-year limitation period on the filing of
applications for asylum. 8 U.S.C. § 1158(a)(2)(B). The one-year filing period
commences either on the date of the alien’s last arrival in the United States or on
April 1, 1997, whichever is later. 8 C.F.R. § 208.4(a)(2)(ii). An asylum
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application that is outside the one-year limitation period may, nevertheless, be
considered if the alien shows changed circumstances. 8 U.S.C. § 1158(a)(2)(D).
Mr. Karsaev arrived in the United States in July 1994. He should therefore
have filed his application for asylum on or before April 1, 1998. He did not file
his application for asylum and withholding of removal until September 1, 1999.
The IJ determined that Mr. Karsaev failed to show changed circumstances that
would excuse his untimely filing.
Under the asylum statute, we lack jurisdiction to review the IJ’s
determinations (1) that Mr. Karsaev’s asylum application was untimely and
(2) that changed circumstances do not excuse his untimely filing. 8 U.S.C.
§ 1158(a)(3); see Tsevegmid v. Ashcroft , 336 F.3d 1231, 1234-35 (10th Cir.
2003). We therefore dismiss for lack of jurisdiction Mr. Karsaev’s challenge to
the denial of his application for asylum. 1
Although we lack jurisdiction to review Mr. Karsaev’s asylum claim, we
must still consider the merits of his claim for withholding of removal. Tsevegmid ,
336 F.3d at 1235. Since the BIA summarily affirmed the IJ’s analysis, we review
1
Mr. Karsaev also contends that the IJ should have applied the Lautenberg
Amendment to him and required a lower standard of proof in assessing his
qualifications for refugee status in connection with his asylum claim. See Act of
Nov. 21, 1989, Pub. L. No. 101-167, Title V § 599D(b), 103 Stat. 1261 (codified
at 8 U.S.C. § 1157 note). Since his asylum claim was barred as untimely,
however, we also lack jurisdiction to consider this issue.
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the IJ’s analysis as if it were the BIA’s, treating his findings of fact as conclusive
unless the record indicates that “any reasonable adjudicator would be compelled
to conclude to the contrary.” Id. (quotations omitted). The applicant for
withholding of removal bears the burden of showing “a clear probability of
persecution attributable to race, religion, nationality, membership in a particular
social group, or political opinion.” Id. (quotation omitted).
The IJ determined that although Mr. Karsaev was born to a Jewish father
and a Russian mother, he had effectively changed his official identification from
Jewish to Russian, and did not practice the Jewish religion. There were some
anti-Semitic incidents in his background. Many of these occurred before he
changed his name. Some of the subsequent events he recounted either were not
sufficiently tied to a protected ground to qualify as persecution or were
investigated by the authorities. Moreover, he was given a sensitive assignment
during his time in the military, casting doubt on any claim of official persecution
during his military service. The IJ concluded that Mr. Karsaev had not shown
that he would suffer persecution because of his Jewish nationality should he
return to Belarus. Having reviewed the record, we cannot say that any reasonable
adjudicator would be compelled to conclude to the contrary. We therefore affirm
the BIA’s decision summarily affirming the IJ’s denial of withholding of removal.
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The portions of Mr. Karsaev’s petition seeking review of the BIA’s denial
of his asylum claim are DISMISSED for lack of jurisdiction. The remainder of
the BIA’s decision under review is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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