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


12-21-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5573




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-5573
                                  ________________

                           MICHAEL TIRTAKUSUMAH,
                                                             Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                      On Petition for Review of a Decision of the
                           Board of Immigration Appeals
                              (Agency No. A96 203 262)
                    Immigration Judge: Honorable Miriam K. Mills
                    _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 1, 2006

          Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES

                             (Filed: December 21, 2006 )
                             _______________________

                                    OPINION
                             _______________________


PER CURIAM

      Michael Tirtakusumah, a citizen of Indonesia, seeks review of a final order of

removal issued by the Board of Immigration Appeals (BIA). For the reasons that follow,
we will dismiss the petition in part for lack of jurisdiction. To the extent we have

jurisdiction, we will deny the petition.

       Tirtakusumah arrived in the United States as a visitor in December 2001. He

overstayed his visa and was charged in March 2003 with removability on this basis.

Tirtakusumah applied for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT), claiming persecution and torture on account of his

ethnicity (Chinese) and religion (Catholic). The Immigration Judge (IJ) denied the

asylum application as untimely and denied withholding and CAT relief on the merits.

The BIA affirmed. Tirtakusumah now petitions for judicial review.

       To the extent Tirtakusumah seeks review of the denial of his asylum application as

untimely, the Attorney General moves to dismiss for lack of jurisdiction. 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

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). Section 1158(a)(3) notwithstanding, we

retain jurisdiction to review constitutional claims and questions of law. See 8 U.S.C. §

1252(a)(2)(D); Sukwanputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir. 2006). Even so,

Tirtakusumah presents no constitutional claims or questions of law regarding the denial of

his asylum application as untimely. Accordingly, we will grant the Attorney General’s

                                             2
motion to dismiss to the extent Tirtakusumah seeks review of the denial of his asylum

application.

         We nonetheless retain jurisdiction to review the denial of statutory withholding of

removal and the denial of relief under the CAT. See Tarrawally, 338 F.3d 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, Tirtakusumah must

demonstrate that his life or freedom would be threatened in Indonesia because of his

ethnicity or religion. 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, Tirtakusumah must show

that it is more likely than not that he will be tortured if removed to Indonesia. 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. We agree with the IJ and the BIA that

Tirtakusumah failed to provide evidence that he was persecuted or tortured in Indonesia

on the basis of ethnicity or religion, or that his life or freedom will be threatened, or that

he will be tortured if returned to Indonesia. In other words, the evidence of record does

not compel a conclusion contrary to that of the BIA or the IJ.

                                               3
       In sum, to the extent that Tirtakusumah seeks review of the denial of his asylum

application as untimely, we grant the Attorney General’s motion to dismiss for lack of

jurisdiction. In all other respects, we will deny the petition for review.1




   1
    Tirtakusumah’s opening brief was prepared by counsel, who withdrew before the case
was submitted to this panel. We agree with the Attorney General’s assessment of the
brief submitted by Tirtakusumah’s former attorney. That brief was totally inadequate.
We commend counsel for the Attorney General for thoroughly briefing the potential
issues in this case.
