Tsevegmid v. Ashcroft

Decision Date24 July 2003
Docket NumberNo. 02-9525.,02-9525.
PartiesErdenebileg TSEVEGMID, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Erdenebileg Tsevegmid, Pro Se.

Papu Sandhu, Senior Litigation Counsel, Blair T. O'Connor, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before KELLY, McKAY and MURPHY, Circuit Judges.

ORDER

McKAY, Circuit Judge.

The Court, in order to modify the opinion dated February 11, 2003, hereby recalls the mandate issued April 7, 2003. The Director of the United States Department of Justice, Office of Immigration Litigation, shall transmit the recalled mandate.

The Court hereby reissues an amended opinion, entered nunc pro tunc. A copy of the amended opinion, with footnote three of the previous opinion deleted, is attached to this order. The mandate is issued forthwith.

Petitioner Erdenebileg Tsevegmid, a native and citizen of Mongolia, seeks review of a final order of removal issued by the Board of Immigration Appeals (BIA), affirming the immigration judge's denial of Mr. Tsevegmid's requests for asylum and for withholding of removal. We dismiss the petition for review with respect to asylum and deny the petition with respect to withholding of removal.1

I.

Mr. Tsevegmid was admitted to the United States on February 10, 1998, as a nonimmigrant student attending the National American University in Denver, Colorado. On April 15, 1998, he withdrew from university classes, thereby violating his student status.

On February 16, 1999, the INS received Mr. Tsevegmid's application for asylum and withholding of removal.2 His requests for relief relied on his highly-visible membership in the Mongolian United Movement, a human rights group. He asserted that he had been beaten by three or four young people and that the attack was attributable to his Mongolian United Movement activities. If he returned to Mongolia, he would again become active in the Mongolian United Movement and would be placed in a life-threatening situation.

The INS asylum office rejected the request as untimely. See 8 U.S.C. § 1158(a)(2)(B), (D) (requiring an asylum Petitioner to file within one year of arrival in the United States, absent a showing of changed circumstances "which materially affect the applicant's eligibility for asylum" or extraordinary circumstances which would excuse a delay). Subsequently, the INS commenced removal proceedings against Mr. Tsevegmid, his wife, and son. Mr. Tsevegmid's application was referred to an immigration judge for a hearing. At this level, Mr. Tsevegmid admitted the factual allegations against him and conceded his removability. He argued entitlement to asylum and withholding of removal based on antagonism to his human-rights activities. He also described general economic conditions in Mongolia.

After a hearing held March 2, 2000, the immigration judge determined that Mr. Tsevegmid was not entitled to asylum. First, the judge found that Mr. Tsevegmid had failed to file within one year of arrival and had made no showing of extraordinary circumstances excusing the delay. Therefore, Mr. Tsevegmid's asylum claim was time-barred. Second, the judge found that Mr. Tsevegmid had failed to show a well-founded fear of persecution or, for purposes of withholding of removal, a clear probability of persecution. Accordingly, the immigration judge denied the application for asylum and request for withholding of removal. Mr. Tsevegmid was granted voluntary departure until May 1, 2000. The BIA summarily affirmed the immigration judge's decision, making that ruling decision the final agency determination.

Mr. Tsevegmid, proceeding pro se, filed a petition for review in this court and a request for a stay of deportation pending appeal. We entered an order temporarily staying the removal of Mr. Tsevegmid, until February 13, 2003. We now address Mr. Tsevegmid's appellate issues.

II.

"An alien who fears persecution if deported has two possible means of relief: asylum and withholding of deportation." Nazaraghaie v. INS, 102 F.3d 460, 462 (10th Cir.1996).3 The asylum statutory provisions are codified in 8 U.S.C. § 1158; the withholding of removal provisions are in § 1231(b)(3). Although the two forms of relief serve comparable purposes and present similar factual issues, there are significant distinctions between them. INS v. Aguirre-Aguirre, 526 U.S. 415, 419, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Asylum provides general relief, whereas withholding of removal applies only to a given country or countries. Asylum allows an alien to remain in the United States and apply for permanent resident status after one year, whereas withholding of removal does not. Id. Additionally, the standard of proof for withholding is higher than the standard of proof for asylum. An alien is not entitled to withholding without a showing that there is a clear probability of persecution due to his race, religion, nationality, membership in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 407, 413, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). This is more demanding than the "well-founded fear" standard applicable to an asylum claim. INS v. Cardoza-Fonseca, 480 U.S. 421, 443-44, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). A final difference is that asylum is discretionary, while withholding of removal is mandatory upon proof of eligibility, with certain exceptions not applicable to this case. Id. at 443-44 & n. 28, 107 S.Ct. 1207. We turn first to our review of the asylum denial.

III.

This court generally has jurisdiction to review the denial of an asylum request. See 8 U.S.C. § 1252(a)(2)(B)(ii) (excepting asylum decision from provision divesting courts of jurisdiction to review denials of discretionary relief). However, our jurisdiction to review a BIA determination on the timeliness of an application for asylum is limited by statute. Section 1158(a)(3) expressly provides that the courts do not have "jurisdiction to review any determination" on whether the alien filed his application within a year of entry or whether "changed circumstances" exist "which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application."

Our sister courts of appeals have uniformly reached literal interpretations of the statutory language and concluded that they lack jurisdiction to review a determination related to the timeliness of an asylum application. See Fahim v. U.S. Att'y Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002) (stating that court has no jurisdiction to review a determination on either the timeliness of an asylum request or whether an alien has established extraordinary circumstances to warrant waiver of time limit); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001) (holding that § 1158(a)(3) precludes judicial review of a determination that an asylum application was untimely); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir.2001) (stating that "[t]he meaning of § 1158(a)(3) is clear: Congress intended to bar judicial review of decisions made under § 1158(a)(2)"). See also Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir.1999) (using § 1158(a)(3) as an example of language which serves to "preclude direct review by any court of certain discretionary decisions made by the Attorney General").

In the instant case, the immigration judge ruled that Mr. Tsevegmid did not file his asylum application within the applicable one-year deadline and did not show any circumstances excusing his tardiness. It is apparent that this court has no jurisdiction to review this ruling. We therefore do not address the substance of Mr. Tsevegmid's arguments concerning timeliness. As to the denial of the asylum application, we dismiss the petition for review for lack of jurisdiction pursuant to § 1158(a)(3).

IV.

Section 1158(a)(3), however, applies only to asylum requests and does not strip this court of its jurisdiction under § 1252(a) to review final orders of removal, such as a denial of withholding of removal. See Fahim, 278 F.3d at 1217-18 (acknowledging lack of jurisdiction to review the Attorney General's decision on the timeliness of an asylum request, then exercising jurisdiction under § 1252(a) to evaluate a petitioner's withholding claim); Ha...

To continue reading

Request your trial
37 cases
  • Chen v. U.S. Dept. of Justice
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 11, 2006
    ...v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir.2003); Fahim v. U.S. Atty. Gen., 278 F.3d 1216, 1217-18 (11th Cir.2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Ismailov v. Re......
  • Xiao Ji Chen v. U.S. Dept. of Justice
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 6, 2006
    ...v. INS, 341 F.3d 533, 544 (6th Cir. 2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir. 2003); Fahim v. U.S. Att'y Gen., 278 F.3d 1216, 1217-18 (11th Cir.2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Ismailov v. ......
  • Elzour v. Ashcroft, No. 04-9507.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 17, 2004
    ...if removed from the United States has two possible avenues of relief: asylum and restriction on removal. See Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003). Asylum generally permits the alien to remain in the United States, whereas restriction on removal forbids removal to the c......
  • Niang v. Gonzales
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 8, 2005
    ...membership in a social group regardless of how it occurred. We exercise jurisdiction under 8 U.S.C. § 1252(a), see Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003). We affirm under the CAT but reverse and remand for further proceedings with respect to the denials of asylum and res......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT