                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2005

Msyati v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3131




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                                                  NON PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            _______________

                                 No. 04-3131
                               _______________

                               GEORG MSYATI,

                                                  Petitioner,

                                        v.

                          ALBERTO R. GONZALES,*
                      Attorney General of the United States,

                                                  Respondent

                                    Pursuant to F.R.A.P. 43(c)
                               _______________

                               Petition for Review
                     from the Board of Immigration Appeals
                           (Agency No. A79 142 162)
                               _______________

                Submitted under Third Circuit Rule LAR 34.1(a)
                                June 10, 2005

    Before: AMBRO, VAN ANTWERPEN, and TASHIMA,** Circuit Judges



      *
            Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General, pursuant to Fed. R. App. P. 43(c)(2).
      **
             Honorable A. Wallace Tashima, Senior United States Circuit Judge
for the Ninth Circuit, sitting by designation.
                           (Opinion filed June 15, 2005)
                                _______________

                                   OPINION
                                _______________

TASHIMA, Senior Circuit Judge

      Georg Msyati petitions for review of a final order of removal of the Board

of Immigration Appeals (“BIA”). Petitioner raises two contentions in support of

his petition: (1) that he was denied a fair hearing when the Immigration Judge

(“IJ”) advanced his hearing date by four months; and (2) that substantial evidence

does not support the BIA’s determination that petitioner has failed to carry his

burden of showing that he has a well-founded fear of persecution on account of a

statutorily protected ground. We have jurisdiction under 8 U.S.C. § 1105(a), and

we deny the petition.

                                         I.

      As a threshold matter, the government challenges our jurisdiction to review

petitioner’s asylum claim. The BIA held that petitioner failed to file his asylum

application “within one year of last entry, and failed to show either extraordinary

circumstances relating to the delay or worsened country conditions.” (Citing 8

U.S.C. § 1158(a)(2); 8 C.F.R. § 1208.4(a).) Petitioner does not challenge this

holding and we agree that we lack jurisdiction to review the asylum claim. See


                                         -2-
Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003) (“We agree that the

language of 8 U.S.C. § 1158(a)(3) clearly deprives us of jurisdiction to review an

IJ’s determination that an asylum petition was not filed within the one year

limitations period, and that such period was not tolled by extraordinary

circumstances.”).

                                          II.

      With respect to petitioner’s withholding of removal and Convention Against

Totrure (“CAT”) claims, petitioner, who was represented by counsel, made no

showing before the BIA of how he was prejudiced by the alleged lack of sufficient

time to present his case to the IJ when his hearing date was advanced four months.

He neither requested a continuance, advised the BIA of what additional evidence

he would have presented if given more time, nor made a motion to remand before

the BIA, citing any new or additional evidence. We therefore conclude that

petitioner’s “fair hearing” claim is without merit.

      As for the substance of petitioner’s withholding of removal and CAT

claims, we have carefully reviewed the administrative record and conclude that the

BIA’s determination that petitioner has failed to establish persecution “on account

of” one of the five grounds recognized by the Immigration and Nationality Act is

supported by substantial evidence. See Fatin v. INS, 12 F.3d 1233, 1241-43 (3d


                                         -3-
Cir. 1993) (withholding of removal); Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d

Cir. 2000) (CAT claim).

                                       III.

      The petition for review is dismissed with respect to the asylum claim;

otherwise, the petition is denied.1

_____________________




      1
            Because we have given plenary consideration to this petition for
review, respondent’s motion for summary affirmance is denied as moot.

                                       -4-
