Erdenebileg Tsevegmid v. John Ashcroft, United States Attorney Gen., 336 F.3d 1231 (10th Cir. 2003). · Go Syfert
Erdenebileg Tsevegmid v. John Ashcroft, United States Attorney Gen., 336 F.3d 1231 (10th Cir. 2003). Cases Citing This Book View Copy Cite
187 citation events (186 in the last 25 years) across 8 distinct courts.
Strongest positive: Artur v. Holder (ca10, 2014-07-16)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Artur v. Holder
10th Cir. · 2014 · confidence medium
And pursuant to § 1252(a)(2)(B)(ii), “[t]his court generally has jurisdiction to review the denial of an asylum request.” Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003), superseded by statute on other grounds, as stated in Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir.2006).
discussed Cited as authority (rule) Zhi Wei Pang v. Holder (2×)
10th Cir. · 2012 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003) (superseded on other grounds by statute ( 8 U.S.C. § 1252 (a)(2)(D))); 8 C.F.R. 208.16.
discussed Cited as authority (rule) Tanuwidjaja v. Holder, Jr. (2×) also: Cited "see"
10th Cir. · 2009 · confidence medium
See id. § 1158(a)(3); Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir.2006); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
cited Cited as authority (rule) Hayrapetyan v. Mukasey
10th Cir. · 2008 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003), superceded on other ground by statute, 8 U.S.C. § 1252 (a)(2)(D).
discussed Cited as authority (rule) Silalahi v. Mukasey (2×) also: Cited "see"
10th Cir. · 2008 · confidence medium
See id. § 1158(a)(3); Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir.2006); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
discussed Cited as authority (rule) Simbolon v. Gonzales (2×)
10th Cir. · 2007 · confidence medium
Our jurisdiction arises under 8 *545 U.S.C. § 1252(a), Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003), and we affirm.
discussed Cited as authority (rule) Xiao Ji Chen v. United States Department of Justice, Attorney General Alberto R. Gonzales
2d Cir. · 2006 · confidence medium
See, e.g., Njenga v. Ashcroft, 386 F.3d 335, 339 (1 st Cir.2004); Zaidi v. Ashcroft, 377 F.3d 678, 681 (7th Cir.2004); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tar rawally 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. Reno, 263 F.3d 851, 854-55 (8th Cir.2001). *324 The statutory landscape, however, changed when the REAL ID Act took effect.
discussed Cited as authority (rule) Peter v. Ashcroft
10th Cir. · 2006 · confidence medium
Petitioners do not argue that their failure to comply with the one-year application deadline was due to ineffective assistance of counsel, and more to the point, we lack jurisdiction to review whether or not the application was timely filed. 8 U.S.C. § 1158 (a)(3); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003) (holding that we lack jurisdiction to consider a ruling denying an asylum application that is filed outside the statutory period).
discussed Cited as authority (rule) Bastian v. Gonzales
10th Cir. · 2006 · confidence medium
Under the asylum statute, however, we “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.’” Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003) (quoting 8 U.S.C. §§ 1158 (a)(3) and (a)(2)(D)). 1 The IJ also denied M r.
discussed Cited as authority (rule) Bastian v. Gonzales
10th Cir. · 2006 · confidence medium
Under the asylum statute, however, we “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.’ ” Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003) (quoting 8 U.S.C. §§ 1158 (a)(3) and (a)(2)(D)).
discussed Cited as authority (rule) Bokhetache v. Gonzales
5th Cir. · 2006 · confidence medium
See 8 U.S.C. §§ 1158 (a)(2)(B), (a)(2)(D), (a)(3); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003); Nieto-Baquero v. Gonzales, 133 Fed.Appx. 976 (5th Cir.2005); Bobo v. Gonzales, 172 Fed.Appx. 69 (5th Cir.2006), 172 Fed.
discussed Cited as authority (rule) Peter v. Gonzales
10th Cir. · 2006 · confidence medium
Petitioners do not argue that their failure to comply with the one-year application deadline was due to ineffective assistance of counsel, and more to the point, we lack jurisdiction to review whether or not the application was timely filed. 8 U.S.C. § 1158 (a)(3); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003) (holding that we lack jurisdiction to consider a ruling denying an asylum application that is filed outside the statutory period).
cited Cited as authority (rule) Bagdassaryan v. Gonzales
10th Cir. · 2006 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir. 2003).
discussed Cited as authority (rule) Diallo v. Gonzales
10th Cir. · 2006 · confidence medium
We have interpreted § 1158(a)(3) literally to mean that federal courts “lack jurisdiction to review a determination related to the timeliness of an asylum application.” Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
discussed Cited as authority (rule) Besime Kanacevic v. Immigration and Naturalization Service
2d Cir. · 2006 · confidence medium
Although other circuits have said that § 1252(a)(2)(B)(ii) might support jurisdiction, see Nreka, 408 F.3d at 1367 n. 7; Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003) (dictum); Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.2003) (quoting Tsevegmid), on its face § 1252(a)(2)(B)(ii) only excepts asylum determinations from a provision that precludes jurisdiction to review discretionary decisions.
cited Cited as authority (rule) Panjaitan v. Gonzales
10th Cir. · 2006 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
discussed Cited as authority (rule) Haimour v. Gonzales (2×) also: Cited "see"
10th Cir. · 2006 · confidence medium
See 8 U.S.C. § 1158 (a)(3) (providing that, “[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph [§ 1158(a)(2)],” which contains the exceptions to granting asylum); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir.2003) (dismissing in part because § 1158(a)(3) expressly bars review regarding “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 app…
discussed Cited as authority (rule) Haniffa v. Gonzales
2d Cir. · 2006 · confidence medium
See also Njenga v. Ashcroft, 386 F.3d 335, 339 (1st Cir.2004); Zaidi v. Ashcroft, 377 F.3d 678, 681 (7th Cir.2004); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tarrawally, 338 F.3d at 185 ; 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. Reno, 263 F.3d 851, 854-55 (8th Cir.2001).
discussed Cited as authority (rule) Xiao Ji Chen v. United States Department of Justice, Attorney General Alberto R. Gonzales
2d Cir. · 2006 · confidence medium
See, e.g., Njenga v. Ashcroft, 386 F.3d 335, 339 (1st Cir.2004); Zaidi v. Ashcroft, 377 F.3d 678, 681 (7th Cir.2004); Castellano-Chacon 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. Reno, 263 F.3d 851, 854-55 (8th Cir.2001).
discussed Cited as authority (rule) Essim v. Gonzales
4th Cir. · 2006 · confidence medium
See 8 U.S.C. § 1158 (a)(3) (2000); see also Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir.2004); Haoud v. Ashcroft, 350 F.3d 201, 204-05 (1st Cir.2003); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003); Fahim v. United States Attorney Gen., 278 F.3d 1216, 1217-18 (11th Cir.2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Ismailov v. Reno, 263 F.3d 851, 854-55 (8th Cir.2001).
discussed Cited as authority (rule) Alexey Seryy v. U.S. Attorney General
11th Cir. · 2005 · confidence medium
See Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.2003) ("This court generally has jurisdiction to review the denial of any asylum request.” (citing § 1252(a)(2)(B)(ii))); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003) (same); see also Abdulrahman v. Ashcroft, 330 F.3d 587, 591 (3rd Cir.2003) ("[A] decision by the Board that an applicant is ineligible for asylum constitutes a 'final order of removal’ that may be subject to judicial review under § 1252(a)(1)."). 2 .
cited Cited as authority (rule) Sadruddin v. Gonzales
10th Cir. · 2005 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
discussed Cited as authority (rule) Agopian v. Gonzales
10th Cir. · 2005 · confidence medium
“The BIA’s findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003) (quotations omitted).
cited Cited as authority (rule) Xiao Feng Jiang v. Gonzales
10th Cir. · 2005 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir.2003); 8 U.S.C. § 1158 (a)(3).
discussed Cited as authority (rule) De Maerschalck v. Gonzales
10th Cir. · 2005 · confidence medium
Reviewing the IJ’s order as if it were the decision of the BIA, Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003), we look to see whether the decision is supported by substantial evidence, and we treat the administrative fact findings as conclusive unless the record shows that a reasonable fact-finder would be compelled to conclude to the contrary.
discussed Cited as authority (rule) Ngugi v. Ashcroft
10th Cir. · 2005 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003) . “[These] findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation marks omitted).
cited Cited as authority (rule) Sabido Valdivia v. Ashcroft
10th Cir. · 2005 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003). ** FACTS The facts of this case are essentially undisputed.
discussed Cited as authority (rule) Niang v. Ashcroft
10th Cir. · 2005 · confidence medium
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 restriction on removal.
examined Cited as authority (rule) Barrios-Canorio v. Ashcroft (4×) also: Cited "see"
10th Cir. · 2005 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
discussed Cited as authority (rule) Qingfeng Ni v. Gonzales
10th Cir. · 2005 · confidence medium
However, a finding that a witness is not credible is a finding of fact, see Elzour, 378 F.3d at 1150 , and the “BIA’s findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003) (quotation omitted).
cited Cited as authority (rule) Aliou v. Ashcroft
10th Cir. · 2005 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir.2003).
discussed Cited as authority (rule) Sharari v. Ashcroft
1st Cir. · 2005 · confidence medium
See Njenga v. Ashcroft, 386 F.3d 335, 339 (1st Cir.2004); Haoud v. Ashcroft, 350 F.3d 201, 204-05 (1st Cir.2003) (acknowledging lack of jurisdiction, although remanding because the Board failed to explain whether its decision was based on timeliness or on the merits); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003) (no jurisdiction to review Board’s determination); Mendoza v. Att’y Gen., 327 F.3d 1283, 1286-87 (11th Cir.2003) (same); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir.2003) (same); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001) (same).
discussed Cited as authority (rule) Sutanto v. Ashcroft (2×) also: Cited "see"
10th Cir. · 2005 · confidence medium
“The [IJ’s] findings of fact are conclusive unless the record demonstrates that ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Tsevegmid, 336 F.3d at 1235 (citations omitted).
cited Cited as authority (rule) Isajanyan v. Ashcroft
10th Cir. · 2005 · confidence medium
See Elzour, 378 F.3d at 1149; Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234, 1236 (10th Cir.2003).
discussed Cited as authority (rule) Guo Ping Huang v. Ashcroft
3rd Cir. · 2005 · confidence medium
Accordingly, this court, and other federal circuits addressing the issue, have held that “the language of 8 U.S.C. § 1158 (a)(3) clearly deprives us of jurisdiction to review an [immigration judge’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); see also Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.2003); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.…
cited Cited as authority (rule) Sanga v. Ashcroft
10th Cir. · 2005 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir.2003) (discussing 8 U.S.C. § 1158 (a)(3)).
cited Cited as authority (rule) Sondh v. Ashcroft
10th Cir. · 2005 · confidence medium
See Elzour, 378 F.3d at 1149; Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234, 1236 (10th Cir.2003).
discussed Cited as authority (rule) Mutale v. Ashcroft (2×)
10th Cir. · 2005 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
discussed Cited as authority (rule) Francisco Jose v. Ashcroft (2×) also: Cited "see"
10th Cir. · 2005 · confidence medium
Cf. Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir.2003) (dismissing petition for lack of jurisdiction because application for special-rule cancellation of removal is request for relief under § 1229b, and review of discretionary decision to cancel removal under § 1229b is barred under § 1252(a)(2)(B)(i) & (ii)); Tsevegmid, 336 F.3d at 1235 (applying § 1158(a)(3), which expressly provides that the courts do not have jurisdiction to directly review Attorney General’s determinations made under § 1158(a)(2), as a jurisdictional bar to re *272 view alien’s claims that he fell within exce…
discussed Cited as authority (rule) Paul v. Ashcroft
7th Cir. · 2005 · confidence medium
See also Nigussie v. Ashcroft, 383 F.3d 531, 533 (7th Cir.2004); Vladimirova v. Ashcroft, 377 F.3d 690, 695 (7th Cir.2004); Roy v. Ashcroft, 389 F.3d 132 , 135 n. 2 (5th Cir.2004); Njenga v. Ashcroft, 386 F.3d 335, 339 (1st Cir.2004); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3rd Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003); Fahim v. U.S. Atty.
discussed Cited as authority (rule) Jaramillo v. Ashcroft (2×) also: Cited "see"
10th Cir. · 2004 · confidence medium
Tsevegmid v. Ashcroft, *235 336 F.3d 1231, 1234 (10th Cir.2003).
discussed Cited as authority (rule) Bitew v. Ashcroft (2×)
10th Cir. · 2004 · confidence medium
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
discussed Cited as authority (rule) Abdullahi v. Ashcroft
4th Cir. · 2004 · confidence medium
See 8 U.S.C. § 1158 (a)(3) (2000); see also Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003).
examined Cited as authority (rule) Tsegay v. Ashcroft (4×) also: Cited "see, e.g."
10th Cir. · 2004 · confidence medium
Tsegay now seeks judicial review of the BIA's decision to affirm her case without opinion. 4 Tsegay acknowledges that under Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003) (analyzing 8 U.S.C. § 1158 (a)(3)), we do not have jurisdiction to review the merits of the IJ's decision.
discussed Cited as authority (rule) Njenga v. Ashcroft
1st Cir. · 2004 · confidence medium
We agree with our sister circuits that the unambiguous language of § 1158(a)(3) bars review in this court of those findings. 7 See 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. Attorney Gen., 278 F.3d 1216, 1217-18 (11th Cir.2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Ismailov v. Reno, 263 F.3d 851, 854-55 (8th Cir.2001); see generally Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.2003) (“[Section] 1158(a)(3) could bar our review of the IJ’s determination of the timeliness of [a petitioner�…
discussed Cited as authority (rule) Kivumbi v. Ashcroft (2×) also: Cited "see"
10th Cir. · 2004 · confidence medium
In addition, the BIA’s factual findings “are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Tsevegmid, 336 F.3d at 1235 (quotation omitted).
discussed Cited as authority (rule) Temesgen v. Ashcroft
4th Cir. · 2004 · confidence medium
See Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003); Fahim v. U.S. Atty.
discussed Cited as authority (rule) Amba v. Ashcroft
4th Cir. · 2004 · confidence medium
See Castellano-Chaeon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003); Fahim v. United States Attorney Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Ismailov v. Reno, 263 F.3d 851, 854-55 (8th Cir.2001).
discussed Cited as authority (rule) Fisehaye v. Ashcroft
4th Cir. · 2004 · confidence medium
See Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir. 2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003); Fahim v. United States Attorney Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001); Ismailov v. Reno, 263 F.3d 851, 854-55 (8th Cir. 2001).
discussed Cited as authority (rule) Syed Zaidi v. John D. Ashcroft, Attorney General of the United States of America
7th Cir. · 2004 · confidence medium
See Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.2003); Castellano-Chacon 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, 1235 (10th Cir.2003); Fahim v. United States Attorney Gen., 278 F.3d 1216, 1218 (11th Cir.2002) (per curiam); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir.2001).
Retrieving the full opinion text from the archive…
Erdenebileg TSEVEGMID, Petitioner,
v.
John ASHCROFT, United States Attorney General, Respondent
02-9525.
Court of Appeals for the Tenth Circuit.
Jul 24, 2003.
336 F.3d 1231
Erdenebileg Tsevegmid, Pro Se., Papú 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.
Kelly, McKAY, Murphy.
Cited by 108 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 77%
Citer courts: D. Colorado (1)

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 entitle[*1234] ment 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 fie 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, 2008. 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. Cardozar-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[*1235] 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); Hakeem, 273 F.3d at 815-16 (same). We must therefore consider the merits of Mr. Tsevegmid’s petition for review concerning his request for withholding of removal.

Where, as here, the BIA summarily affirms or adopts an immigration judge’s decision, this court reviews the judge’s analysis as if it were the BIA’s. See, e.g., Li v. Ashcroft, 312 F.3d 1094, 1099 (9th Cir.2002); Mousa v. INS, 223 F.3d 425, 428 (7th Cir.2000). The BIA’s findings of fact are conclusive unless the record demonstrates that “ ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Fahim, 278 F.3d at 1218 (quoting 8 U.S.C. §§ 1252(b)(4)(A)-(B)).

To qualify for withholding of removal, an applicant has the burden of demonstrating “a clear probability of persecution” attributable to “race, religion, nationality, membership in a particular social group, or political opinion.” Krastev v. INS, 292 F.3d 1268, 1271 (10th Cir.2002). Here, the immigration judge found that Mr. Tsevegmid had not shown past persecution in that he had not linked the attack on his person to political motives. Furthermore, there was no probability of future persecution:

[*1236] [i]f [Mr. Tsevegmid] has no idea who this group was that might have attacked him, but if it was a group operating outside the government, he certainly has not shown the government is unwilling or unable to protect him, and it does not appear that it was the government itself.

R. at 55. Consequently, the immigration judge determined that Mr. Tsevegmid failed to meet the high standard for withholding of deportation.

After reviewing the briefs and the record, we cannot conclude that a reasonable adjudicator would be compelled to reject the immigration law judge’s findings of facts. Accordingly, we deny the petition for review as to the denial of withholding of removal.

V.

The petition for review is DISMISSED IN PART AND DENIED IN PART. This court’s temporary stay pending appeal is dissolved. Mr. Tsevegmid’s motion for a stay of removal relating to his wife is DENIED and his motion for appointment of attorney is DENIED.

1

. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

2

. Mr. Tsevegmid's wife and son entered the United States as nonimmigrant visitors authorized to remain until February 4, 1999, then overstayed their visas. Pursuant to 8 U.S.C. § 1158(b)(3)(A), a "spouse or child ... of an alien who is granted asylum ... may, if not otherwise eligible for asylum ... be granted the same status as the alien if accompanying, or following to join, such alien.” The wife and son’s asylum request was encompassed within Mr. Tsevegmid’s application.

3

. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act's provisions for deportation (renamed "removal”) and judicial review of orders of removal. Because petitioner’s removal proceedings were commenced after the April 1, 1997, effective date of IIRIRA, this case is governed by IIRIRA’s permanent rules. See IIRIRA § 309(a), Pub.L. No. 104-208, 110 Stat. 3009-625.