Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-21-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4544




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                                                                   NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No: 02-4544
                                   _______________

                                   MARTIN TJORA,

                                            Petitioner


                                            v.

                          JOHN ASHCROFT, Attorney General
                                of The United States,

                                          Respondent
                                   _______________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                               (Board No. A78-71-597)
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                on December 19, 2003

                      Before: ROTH and M cKEE, Circuit Judges
                              CUDAHY*, Circuit Judge


                             (Opinion filed: July 21, 2004)




        * Honorable Richard D. Cudahy, Circuit Court Judge for the Seventh Circuit,
sitting by designation.
                                        OPINION




ROTH, Circuit Judge:

       Martin Tjora seeks review of a December 9, 2002 decision of the Board of

Immigration Appeals (BIA) affirming without opinion the decision of the Immigration

Judge to deny his application for asylum, withholding of removal, and protection under

the United Nations Convention Against Torture (CAT).

       Tjora, a citizen of Indonesia, was admitted to the United States on July 6, 1998, as

a non-immigrant visitor authorized to remain until January 5, 1999. Having stayed

beyond that time, on October 2, 2000, Tjora filed an application for asylum with the

Immigration and Naturalization Service (INS) claiming past persecution and fear of such

in the future because of his Chinese ethnicity and Christian religion.

       Removal proceedings were commenced against Tjora on February 6, 2001. After

conceding removability, Tjora applied for asylum, withholding of removal, protection

under CAT and, in the alternative, voluntary departure. The INS then moved to pretermit

Tjora’s asylum application for failing to file it before the one year filing deadline. 8

U.S.C. § 1158(a)(2)(B). At Tjora’s M ay 3, 2001, asylum hearing, the IJ found that a

reasonable person would have sought the protection of the United States within a year of

arrival and entered a decision pretermitting Tjora’s application for asylum and, in



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addition, denying his applications for withholding of removal and protection under CAT.

However, in lieu of an order of removal, the IJ granted Tjora’s request for voluntary

departure.

       Tjora then filed a timely notice of appeal with the BIA. On December 9, 2002, the

BIA affirmed the IJ’s decision without opinion. Tjora then filed a petition for review

with this Court alleging (1) that the BIA’s affirmance of the IJ’s order without opinion

under 8 C.F.R. § 3.1 (e)(4) violated his 14th amendment due process rights, (2) that

exceptional circumstances or changed country conditions exist under 8 U.S.C. §

1158(a)(2)(B), excusing the late filing of his application for asylum, and (3) that the IJ

should have granted his application for asylum as he had demonstrated a well-founded

fear of future persecution on account of his race and religion under CAT.

       We have jurisdiction to hear Tjora’s petition for review pursuant to 8 U.S.C. §

1252. The agency’s finding that an alien is ineligible for withholding of removal and

protection under CAT is reviewed for substantial evidence. See INS v. Elais-Zacarias,

, 481 (1992). However, we lack jurisdiction to review the Attorney

General’s determination that an asylum application was not filed within one year of his

arrival in the United States, as well as whether an alien satisfies one of the exceptions to

the filing deadline. See INA § 208(a)(2)(B) and (a)(3), 8 U.S.C. § 1158(a)(2)(B) and

(a)(3); Tsevegmid v. Ashcroft, 

, 1229-30 (10th Cir. 2003).

       Tjora alleges that his due process rights were violated by the BIA’s failure to issue



                                              3
its own separate opinion in this case. However, “meaningful review of the [agency’s]

removability determination is not precluded by the brevity of the BIA’s summary

affirmance because an appellate court ‘will continue to have the IJ’s decision and the

record upon which it is based available for review.’” Mendoza v. United States Attorney

General, 

, 1289 (11th Cir. 2003).

       Furthermore, Tjora alleges that the late filing of his application for asylum should

have been excused due to exceptional circumstances or changed county conditions. INA §

208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). However, the INA provides that “[n]o court

shall have jurisdiction to review any determination of the Attorney General” regarding the

timeliness of an asylum application. INA § 208(a)(3), 8 U.S.C. § 1158(a)(3). Here, the IJ

found that Tjora failed to file his asylum application within one year and that he did not

satisfy any exceptions to the filing deadline. Because these determinations were made

under § 208(a)(2), this court lacks jurisdiction to review them under 8 U.S.C. §

1158(a)(3).

       Moreover, Tjora alleges that the IJ should have granted his application for asylum

as he established a well-founded fear of future persecution on account of his race and

religion under CAT. However, substantial evidence supports the IJ’s determination that

Tjora was ineligible for withholding of removal and protection under CAT.

       For the foregoing reasons, we will deny the petition for review of the decision of

the Board of Immigration Appeals.



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