Fisehaye v. Ashcroft, (4th Cir. 2004)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-1235 ERITREA FISEHAYE, Petitioner, versus

JOHN ASHCROFT, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration

Appeals. (A79-469-407)

Submitted: July 7, 2004 Decided: July 30, 2004

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Eritrea Fisehaye, Petitioner Pro Se. Emily Anne Radford, Aviva L. Poczter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

- 2 - PER CURIAM: Eritrea Fisehaye, a native and citizen of Ethiopia, petitions for review of an order of the Board of Immigration

Appeals (“Board”) affirming, without opinion, the immigration

judgeÂ’s order denying her applications for asylum, withholding of

removal, and protection under the Convention Against Torture. Fisehaye challenges the immigration judgeÂ’s finding that her asylum application was untimely because she failed to show by

clear and convincing evidence that she filed her application within

one year of the date of her ar rival in the United States. See U.S.C. § 1158(a)(2)(B) (2000). We conclude that we lack

jurisdiction to review this claim pursuant to 8 U.S.C. § 1158(a)(3)

  (2000). 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). Given this jurisdictional bar, we cannot review the underlying merits of

FisehayeÂ’s asylum claim. While we do not have jurisdiction to consider the immigration judgeÂ’s denial of FisehayeÂ’s asylum claim, we retain

jurisdiction to consider the denial of her requests for withholding

of removal, which is not subject to the one-year time limitation.

* Fisehaye does not challenge the immigration judgeÂ’s denial of her request for protection under the Convention Against Torture in

her petition for review. - 3 - See C.F.R. § 1208.4(a) (2004). “To qualify for withholding of

removal, a petitioner must show that [s]he faces a clear

probability of persecution because of h[er] race, religion, nationality, membership in a particular social group, or political

opinion.” Rusu v. INS

, 296 F.3d 316, 324 n.13 (4th Cir. 2002) (citing INS v. Stevic

, 467 U.S. 407, 430 (1984)). Based on our review of the record, we find that Fisehaye has failed to meet this

standard. * Accordingly, we deny FisehayeÂ’s petition for review. We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process. PETITION DENIED

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