Tjandra v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 21 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LINDAWATI TJANDRA; WE LI
TJEONG,
Petitioners,
No. 03-9559
v. (Nos. A77-868-396 & A77-868-397)
(Petition for Review)
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before SEYMOUR and ANDERSON , Circuit Judges, and KANE , ** Senior
District Judge.
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.
*
This order and judgment is not binding precedent, except under the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.
**
The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
Petitioner Lindawati Tjandra and her husband, petitioner We Li Tjeong,
seek review of a decision of the Board of Immigration Appeals (BIA) dismissing
their appeal from the denial of their application for asylum, withholding of
removal, and relief under the Convention Against Torture. The alleged
persecution was aimed at Ms. Tjandra; therefore, Mr. Tjeong’s claims are
dependent on her claims. Because we conclude that we lack jurisdiction to hear
this appeal, we dismiss the petition for review.
Petitioners are citizens of Indonesia and ethnic Chinese. They are
Christian. Indonesia is a predominantly Muslim country. Ms. Tjandra claims
that, on account of her race or religion, she was gang-raped by seven men during
the Indonesian riots of May 1998, that one of the men was dressed in military
clothing, and that she suffers severe depression as a result of this ordeal. On
October 28, 1998, Ms. Tjandra and her husband fled Indonesia and entered the
United States on visitors’ visas. On October 14, 1999, Ms. Tjandra and her
counsel signed an application for asylum and withholding of removal, but the
application was not filed until December 1999, more than one year after
petitioners entered the United States. The INS 1
thereafter served petitioners with
1
“The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (“USCIS”) within
the newly formed Department of Homeland Security.” Sviridov v. Ashcroft ,
358 F.3d 722, 724 n.1 (10th Cir. 2004).
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notices to appear, asserting that they were removable under 8 U.S.C.
§ 1227(a)(1)(B), for overstaying their visitors’ visas. At a master calendar
proceeding, petitioners conceded removability but sought asylum, withholding of
removal, and relief under the Convention Against Torture. After a merits hearing,
an immigration judge (IJ) issued an oral decision holding Ms. Tjandra’s
application for asylum time-barred under 8 U.S.C. § 1158(a)(2)(B). The IJ also
denied withholding of removal and relief under the Convention Against Torture,
but granted voluntary departure. Ms. Tjandra timely appealed to the BIA, which
dismissed her appeal on April 21, 2003. In doing so, the BIA held that the IJ
“correctly pretermitted her asylum application.” Admin. R. at 9. The BIA also
denied withholding of removal and relief under the Convention Against Torture.
This petition for review followed.
Ms. Tjandra raises two issues on appeal. First, she generally asserts that
she received ineffective assistance of counsel from the attorney who represented
her before the IJ and BIA. In particular, she claims that she was prejudiced by
her former attorney’s deficient performance because her former attorney failed to
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timely file her asylum application. 2
Second, Ms. Tjandra asserts that she was
incorrectly denied withholding of removal.
Before we address Ms. Tjandra’s first issue, which she raises for the first
time in this court, we must examine our jurisdiction. As we have often stated,
“[t]he failure to raise an issue on appeal to the Board constitutes failure to
exhaust administrative remedies with respect to that question and deprives the
Court of Appeals of jurisdiction to hear the matter.” Rivera-Zurita v. INS , 946
F.2d 118, 120 n.2 (10th Cir. 1991). Notwithstanding, “[c]ourts have carved out
an exception to the exhaustion requirement for constitutional challenges to the
immigration laws, because the BIA has no jurisdiction to review such claims.”
Akinwunmi , 194 F.3d at 1341. But because the BIA has created a mechanism for
hearing an ineffective assistance of counsel claim, see Matter of Lozada , 19 I. &
N. Dec. 637 (BIA 1988), this court has held that an “alien’s failure to raise the
claim to the BIA,” via a motion to reopen the administrative proceedings,
“deprives this court of jurisdiction to review it.” Akinwunmi , 194 F.3d at 1341;
2
Contrary to petitioners’ suggestion that the Sixth Amendment entitles those
in deportation proceedings to the effective assistance of counsel, “there is no
Sixth Amendment right to counsel in a deportation proceeding.” Akinwunmi v.
INS , 194 F.3d 1340, 1341 n.2 (10th Cir. 1999). Instead “a claim of ineffective
assistance of counsel in a deportation proceeding may be based only on the Fifth
Amendment guarantee of due process.” Id. Because petitioners’ brief on appeal
contains Fifth Amendment ineffective-assistance-of-counsel arguments, albeit
without citing the Fifth Amendment, we assume, without deciding, that petitioners
also proceed under a Fifth Amendment due process theory.
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see also Osei v. INS , 305 F.3d 1205, 1208 (10th Cir. 2002) (noting that because
the Board has “a mechanism for hearing due-process based claims of ineffective
assistance of counsel, such claims must first be presented to the Board”).
Likewise, this court is without jurisdiction to hear any argument with respect to
the denial of petitioners’ request for withholding of removal or relief under the
Convention Against Torture because petitioners did not raise these issues before
the BIA. See Rivera-Zurita , 946 F.2d at 120 n.2.
Accordingly, we DISMISS the petition for review because we lack
jurisdiction.
Entered for the Court
John L. Kane
Senior District Judge
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