Laszczowski v. Atty Gen USA , 133 F. App'x 860 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-16-2005
Laszczowski v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3255
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3255
________________
BAZYLI A. LASZCZOWSKI,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES *
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A97 436 463)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 15, 2005
Before: SLOVITER, BARRY and FISHER, Circuit Judges
(Filed June 16, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Bazyli Laszczowski seeks review of a final order of removal issued by the Board
of Immigration Appeals (BIA). For the reasons that follow, we will deny the petition.
*
Caption amended pursuant to Rule 43(c), Fed. R. App. P.
Because the parties are familiar with the facts and background, we will not recount
them except as necessary to our discussion. Laszczowski, a citizen of Poland, entered the
United States as a visitor in 1985. In 2003, Laszczowski appeared before an immigration
judge (IJ) and conceded removability for overstaying his visa. He applied for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT) on the
ground that he faced persecution and torture as a Jew. The IJ denied his asylum
application as untimely, denied his remaining applications as lacking in merit, and
ordered him removed to Poland. The BIA, by a single member, affirmed. Laszczowski
now petitions for review.1
To the extent Laszczowski seeks to challenge the denial of asylum, he cannot do so
in his petition for review because the IJ denied his asylum application as untimely.2
Under the Immigration and Nationality Act, “[n]o court shall have jurisdiction to review
any determination of the Attorney General” that an asylum application is untimely. 8
U.S.C. § 1158(a)(3). Section 1158(a)(3) thus deprives us of jurisdiction to review a
1
We have jurisdiction over Laszczowski’s petition for review pursuant 8 U.S.C.
§ 1252. Although Laszczowski refers in his brief to a district court decision and a motion
to reopen proceedings with the BIA, our jurisdiction extends only to reviewing the final
order of removal, i.e., the BIA’s order of July 7, 2004.
2
An alien must prove by clear and convincing evidence that he filed his asylum
application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B);
Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). An alien’s failure to file an
asylum application within one year may be excused if he can establish extraordinary
circumstances relating to the delay in filing the application. 8 U.S.C. § 1158(a)(2)(D);
Tarrawally, 338 F.3d at 184.
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determination “that an asylum petition was not filed within the one year limitations
period, and that such period was not tolled by extraordinary circumstances.” Tarrawally
v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).
Notwithstanding, we retain jurisdiction to review the denial of statutory
withholding of removal, as well as the denial of relief under the CAT. See id. at 186. We
review the BIA’s denial of withholding of removal and CAT relief for substantial
evidence and will uphold the BIA’s determinations “unless the evidence not only supports
a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.
2003). In order to obtain statutory withholding of removal, Laszczowski must
demonstrate that his life or freedom would be threatened in Poland because he is Jewish.
See 8 U.S.C. § 1231(b)(3)(A). This requires him to show “that it is more likely than not
that he will face persecution” if removed. Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.
2003). In order to obtain CAT relief, Laszczowski must show that it is more likely than
not that he will be tortured if removed to Poland. See 8 C.F.R. § 1208.16(c)(2); Zubeda,
333 F.3d at 471.
We have reviewed the record as a whole and find reasonable, substantial, and
probative evidence to support the BIA’s decision. In particular, we agree with the IJ that
Laszczowski failed to provide any evidence that he was persecuted or tortured in Poland
on the basis of religion, or that his life or freedom will be threatened or that he will be
tortured if returned to Poland.
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Finally, Laszczowski asserts in his brief that he is eligible for cancellation of
removal under 8 U.S.C. § 1229b. One of the requirements for cancellation of removal is
to establish “that removal would result in exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a citizen of the United States.” 8 U.S.C. §
1229b(b)(1)(D). As the IJ described, Laszczowski was unable to even locate his wife,
from whom he has been separated for some time, much less demonstrate an extreme
hardship to her if he is removed. Nothing in the record undermines the IJ’s conclusion in
this regard.
In sum, the BIA’s decision is supported by reasonable, substantial, and probative
evidence on the record as a whole. Accordingly, we will deny Laszczowski’s petition for
review.
4