Lalu Rusmayadi v. Eric Holder, Jr., No. 10-1236 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1236 LALU RUSMAYADI, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 27, 2010 Decided: October 26, 2010 Before MOTZ, AGEE, and WYNN, Circuit Judges. Petition dismissed in part and denied in part by unpublished per curiam opinion. Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville, Maryland, for Petitioner. Tony West, Assistant Attorney General, John S. Hogan, Senior Litigation Counsel, Aimee J. Frederickson, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lalu Rusmayadi, a native and citizen of Indonesia, petitions for review of an order of the Board of Immigration Appeals ( Board ) denying his applications for asylum, withholding from removal and withholding under the Convention Against Torture ( CAT ). We dismiss in part and deny in part the petition for review. Rusmayadi s application for asylum was denied because it was not filed within one year of his arrival in the United States and he circumstances failed excusing to show the late changed filing. or extraordinary Under 8 U.S.C. § 1158(a)(3) (2006), the Attorney General s decision regarding whether an alien has complied with the one-year time limit for filing an application for asylum or has established changed or extraordinary circumstances justifying waiver of that time limit See Zaidi v. Ashcroft, 377 F.3d is not reviewable by any court. 678, 680-81 (7th Cir. 2004) (collecting cases holding that this jurisdiction-stripping provision precludes judicial review). have held that we lack jurisdiction application denied as untimely. 505, 510 n.5 (4th Cir. 2007). jurisdiction to review the to review an We asylum Niang v. Gonzales, 492 F.3d We have also held that we lack immigration judge s discretionary factual determination that the alien failed to establish changed or extraordinary circumstances excusing the late filing of the 2 asylum application. Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009), cert. denied, 130 S. Ct. 1084 (2010). Because we are without jurisdiction to review the denial of the untimely asylum application, we dismiss the petition for review from that part of the Board s order. To establish eligibility for withholding of removal, an alien must show a clear probability that, if he was removed to his native country, his life or freedom would be threatened on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A clear probability means that it is more likely than not that the alien would be subject to persecution. 407, 429-30 (1984). INS v. Stevic, 467 U.S. The protected ground must be a central reason for being targeted for persecution. A central reason is one that is more than incidental, tangential, superficial, or subordinate to another reason for harm. See Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009) (quoting In re J-BN-, 24 I. & N. Dec. 208, 214 (BIA 2007)). Unlike asylum, withholding of removal is mandatory for anyone who establishes that their life or freedom would be threatened . . . because of [their] race, religion, nationality, membership in a particular social group, or political opinion. (2006). 8 U.S.C. § 1231(b)(3)(A) A determination regarding eligibility for withholding of removal is conclusive if supported by substantial evidence on 3 the record considered as a whole. U.S. 478, 481 (1992). INS v. Elias-Zacarias, 502 Additionally, in order to receive relief under the CAT, Rusmayadi must show it is more likely than not he will be tortured § 1208.16(c) (2010). if he returns to Indonesia. 8 C.F.R. He must further show the torture will be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. We 8 C.F.R. § 1208.18(a)(1) (2010). conclude that the Board s decision denying the applications for withholding from removal and withholding under the CAT is supported by substantial evidence. We note that in addition to the finding that Rusmayadi failed to establish he was targeted because of a protected ground, such as membership in a particular social group, the Board also found Rusmayadi could relocate in Indonesia and avoid the threat of persecution. See 8 C.F.R. § 1208.16(b)(1)(i)(B), (c)(3)(ii). particular opening finding brief, he was not challenged has waived review by by Because this Rusmayadi this Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001). court. in his See Accordingly, we deny the petition for review from that part of the Board s order denying withholding from removal and withholding under the CAT. We dismiss in part and deny in part the petition for review. We dispense with oral argument because the facts and 4 legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. PETITION DISMISSED IN PART AND DENIED IN PART 5
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