Parthayasa, Komang v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 23, 2006*
Decided August 23, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-3870
KOMANG A. PARTHAYASA, On Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A 95-557-462
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Komang Parthayasa applied for asylum and withholding of removal on the
ground that he suffered persecution in his native Indonesia. Eventually he dropped
his asylum claim, and the Immigration Judge then denied withholding of removal
after concluding that the single instance of harm Parthayasa suffered was not
persecution but, rather, a random act of violence perpetrated by an angry mob
during a demonstration. The Board of Immigration Appeals adopted and affirmed
the IJ’s decision. Parthayasa now petitions for review, arguing that he was denied
*
After examining the briefs and record, we granted the petitioner’s motion to
waive oral argument. Thus, the petition for review is submitted on the briefs and
the record. See Fed. R. App. P. 34(f).
No. 05-3870 Page 2
due process because, he says, the IJ prejudged his asylum application and
threatened to deny him the option of voluntary departure if he pursued it.
Parthayasa never raised this contention before the BIA, so we do not have
jurisdiction to hear it. We therefore deny the petition.
Parthayasa entered the United States in June 2001 on a four-month work
visa and overstayed. He came to the attention of immigration authorities in April
2003 when he complied with a requirement that visitors from designated countries,
including Indonesia, register with the Department of Homeland Security. After he
registered, DHS placed Parthayasa under removal proceedings. Only then—two
years after his visa expired—did he apply for asylum and withholding. He claimed
in his application that he was persecuted based on his political opinion and
membership in a particular social group when an unknown assailant stabbed him
in the chest in April 2000 as he “tried to prevent supporters of presidential
candidates from fighting each other.”
At Parthayasa’s first appearance before the IJ with counsel, the IJ granted
his request for a continuance, but then went on to question him without an
interpreter. After Parthayasa said he had never been arrested, or charged with a
crime, or detained by police in Indonesia, the IJ stated on the record that he was
ineligible for relief other than voluntary departure. Before adjourning, the IJ
resumed asking Parthayasa why he couldn’t go back to Indonesia, but when counsel
objected, the IJ abandoned the questioning.
At Parthayasa’s next appearance, the IJ announced at the outset that
Parthayasa couldn’t “even be considered for asylum” because he did not apply
within one year of arrival. See 8 U.S.C. § 1158(a)(2)(B). The IJ noted his suspicion
that Parthayasa brought the asylum claim solely “for purposes of stalling his case,”
and repeatedly warned that he would be deported if he filed a frivolous claim. Still,
the IJ accepted his application and twice explained that he could establish
eligibility for asylum at the next hearing if he showed that he qualified for an
exception to the filing deadline. See 8 U.S.C. § 1158(a)(2)(D). The IJ made similar
comments at a third appearance.
When his case finally came up for a hearing in August 2004, Parthayasa
stated that he was not asserting any excuse for the untimely filing of his asylum
application and that he sought only withholding of removal. After receiving
Parthayasa’s evidence, the IJ characterized his withholding claim as disingenuous
and denied it. The IJ reasoned that Parthayasa had just been “in the wrong place
at the wrong time”when he was injured, and that he’d failed to demonstrate that
the single instance of harm he suffered was motivated by political opinion or any
other protected ground. In a per curiam order, the BIA adopted and affirmed the
IJ’s determination.
No. 05-3870 Page 3
The Immigration and Nationality Act requires an alien to exhaust his
administrative remedies before seeking judicial review of a removal order. 8 U.S.C.
§ 1252(d)(1); Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004). Although due
process claims are generally exempt from the exhaustion requirement because the
BIA does not have the authority to adjudicate constitutional issues, the requirement
applies when the petitioner’s claim involves procedural errors that are correctable
by the BIA. Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006); Capric, 355 F.3d at
1087. Thus, a petitioner waives the right to present a due process argument for the
first time in a petition for review if the BIA had the ability to correct the problem by
ordering a new hearing had the claim been presented to it. See Feto, 433 F.3d at
912; Awad v. Ashcroft, 328 F.3d 336, 340 (7th Cir. 2003).
In his brief to the BIA, Parthayasa never made a due process argument, nor
did he even suggest that the IJ coerced or threatened him into withdrawing his
asylum application. The BIA could have ordered a new hearing if this claim had
merit. But because Parthayasa failed to assert the argument before the BIA, we
lack jurisdiction to consider it now. Even if this were not the case, Parthayasa
conceded that he did not file a timely asylum application or satisfy any exception to
the filing deadline; thus, his due process claim would fail because he cannot show
that he was prejudiced. See Capric, 355 F.3d at 1087–88 (holding that a petitioner
must show prejudice to prevail on a due process claim).
We therefore DENY the petition for review.