Dekanosidze v. Gonzales

MEMORANDUM ^***

Zurab and Guliko Dekanosidze, natives and citizens of Georgia, petition for review of the Board of Immigration Appeals’ (“BIA”) dismissal of their appeal from an immigration judge’s denial of their application for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). We have partial jurisdiction pursuant to 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.

The BIA adopted and affirmed the IJ’s determination that the Dekanosidzes’ asylum claim was untimely. We lack jurisdiction to review this determination and do not consider the merits of their asylum claim. See Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002).

Substantial evidence supports the agency’s denial of withholding because the Dekanosidzes did not demonstrate that it was more likely than not that they would be subject to persecution on a protected ground if they returned to Georgia. See INS v. Stevie, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).

The Dekanosidzes’ challenge to the BIA’s adoption of the IJ’s opinion with respect to their claim for withholding of removal is without merit. See Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir.1995) (endorsing the practice of adopting the IJ’s opinion without issuing a separate opinion).

The Dekanosidzes waive any challenge to the agency’s denial of CAT relief by not raising this issue in their opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996).

Pursuant to Desta v. Ashcroft, 365 F.3d 741, 749-50 (9th Cir.2004), the Dekanosidzes’ motion for stay of removal included a timely request for stay of voluntary departure. Because the stay of removal was continued based on the government’s filing of a notice of non-opposition, the voluntary departure period was also stayed, nunc pro tunc, as of the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.