                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4039




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                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                  No: 04-4039

                    BAKRI RASJID; OLIVIA HERDIJONO

                                   Petitioners

                                            v.

             *ALBERTO R. GONZALES, ATTORNEY GENERAL
                      OF THE UNITED STATES

                                  Respondent

                    *(Amended pursuant the F.R.A.P. 43(c))

                        Petition for Review from a Final Order
                      of the Board of Immigration Appeals
                     (File Nos. A79-305-042, A79-305-043)


                Submitted pursuant to Third Circuit LAR 34.1(a)
                               March 27, 2006


             Before: McKEE, VAN ANTWERPEN, Circuit Judges
                     and POLLAK, Senior District Judge *


                                   OPINION

McKEE, Circuit Judge.



      *
       The Honorable Louis H. Pollack, Senior District Judge for the United
States District Court for the Eastern District of Pennsylvania, sitting by
designation.

                                        1
       Bakri Rasjid and Olivia Herdjijono, husband and wife, petition for review

of the Board of Immigration Appeals’ affirmance of the Immigration Judge’s

denial of their applications for asylum, withholding of removal and protection

under the Convention Against Torture (the “CAT”).1 For the reasons that follow,

we will affirm the BIA and dismiss the Petition for Review.

                                          I.

       Inasmuch as we are writing primarily for the parties who are familiar with

this matter, we need not reiterate the factual or procedural background of this

appeal except insofar as may be helpful to our brief discussion.

       Herdjijono entered the United States on December 14, 1998, but she did not

file her application for asylum until December 12, 2001. Rasjid entered the United

States on May 14, 1999, but did not file his application until April 30, 2001.    The

Immigration Judge dimissed Petitioners’ asylum applications because they were

not filed within one year of arrival in the United States and Petitioners failed to

show exceptional circumstances that would excuse the untimeliness. The IJ also

denied Petitoners’ claims for withholding of removal and relief under the CAT.

The Board of Immigration Appeals affirmed without opinion pursuant to 8 C.F.R.

§ 3.1(a)(7).

                                          II.



      Rasjid was the derivative beneficiary of Herdjijono’s asylum application.
       1


Adm. Rec. 72.

                                           2
       An alien must submit an application for asylum within one year of entry

into the United States absent “extraordinary circumstances” or an intervening

change in country conditions. 8 U.S.C. § 1158(a)(2)(D).       Petitioners claim that

exceptional circumstances excuse the late filing of the asylum applications.

However, we have no jurisdiction to review the IJ’s conclusion to the contrary

given the jurisdictional bar contained in 8 U.S.C. § 1158(a)(3). Accordingly, the

IJ’s dismissal of the asylum applications must stand.

       Although the jurisdictional bar does not apply to Petitioners’ claims for

relief from withholding of removal or relief under the CAT, neither claim is raised

as an issue in the Petitioners’ brief on appeal. Rather, Petitioners only ask us to

determine “whether there was an exceptional circumstance that justified the late

filing of [their] . . . applications for asylum,” and “whether [they] demonstrated

their inability or unwillingness to return to Indonesia . . . such that the Immigration

Judge should have granted their applications for asylum on their merits.”

Petitioners’ Br. at 3

       However, because of the aforementioned jurisdictional limitation, we have

no jurisdiction to review the asylum issues they are attempting to raise on appeal.

“[T]he 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.” Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).


                                           3
                                           III.

       Accordingly, we must dismiss the Petition for Review as we have no

jurisdiction to address the only claim Petitioners raise in their brief. 2




       2
         Since they are not raised in their brief, the withholding of removal and
CAT claims are waived or abandoned. See Ghana v. Hollland, 226 F.3d 175, 180
(3d Cir. 2000), see also FRAP 28(a)(5). Local Appellate Rule 28.1(a) requires
appellants to set forth the issues raised on appeal and to present an argument in
support of those issues in the opening brief. See Kost v. Kozakiewicz, 1 F.3d 76,
182 (3d Cir. 1993) (“It is well settled that if an appellant fails to comply with these
requirements on a particular issue, [appellant]. . . normally has abandoned and
waived that issue on appeal.”).
        The IJ denied all relief after finding that the testimony Petitioners offered at
their removal hearing was not credible. Alternatively, he ruled that, even if their
testimony had been credible, it would not have established a claim for withholding
of removal or relief under the CAT. Although we have no jurisdiction to review
the only claim before us, we note our agreement with the IJ’s conclusion that
Petitioners’ testimony regarding their mistreatment in Indonesia would not have
established eligibility for relief from removal even if that testimony had been
accepted as credible.

                                            4
