Rusmayadi v. Holder , 399 F. App'x 791 ( 2010 )

UNPUBLISHED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Petition dismissed in part and denied in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.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 failed to show changed or extraordinary
circumstances excusing the late filing. 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
is not reviewable by any court. See Zaidi v. Ashcroft, 377 F.3d
678, 680-81 (7th Cir. 2004) (collecting cases holding that this
jurisdiction-stripping provision precludes judicial review). We
have held that we lack jurisdiction to review an asylum
application denied as untimely. Niang v. Gonzales, 492 F.3d
505, 510 n.5 (4th Cir. 2007). We have also held that we lack
jurisdiction to review the immigration judge’s discretionary
factual determination that the alien failed to establish changed
or extraordinary circumstances excusing the late filing of the
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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. INS v. Stevic, 467 U.S.
407, 429-30 (1984). 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-B-
N-, 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.” 8 U.S.C. § 1231(b)(3)(A)
(2006). A determination regarding eligibility for withholding
of removal is conclusive if supported by substantial evidence on
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the record considered as a whole. INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992). Additionally, in order to receive relief
under the CAT, Rusmayadi must show it “is more likely than not”
he will be tortured if he returns to Indonesia. 8 C.F.R.
§ 1208.16(c) (2010). 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.” 8 C.F.R. § 1208.18(a)(1) (2010).
We 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). Because this
particular finding was not challenged by Rusmayadi in his
opening brief, he has waived review by this court. See
Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001). 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
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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