Tsevegmid v. Ashcroft, 02-9525.
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | McKay |
| Citation | 336 F.3d 1231 |
| Parties | Erdenebileg TSEVEGMID, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent. |
| Docket Number | No. 02-9525.,02-9525. |
| Decision Date | 24 July 2003 |
v.
John ASHCROFT, United States Attorney General, Respondent.
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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.
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
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
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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.
"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...
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