Bun San Yo v. Ashcroft

118 F. App'x 260

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2004
• Docket: No. 03-73038
• Status: Published

Opinion

MEMORANDUM

**

Bun San Yo, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of an immigration judge’s (“IJ”) decision pretermitting his asylum application as untimely. We dismiss the petition for review.

We lack jurisdiction to review the agency’s determination under 8 U.S.C. § 1158(a)(2) that an asylum application was untimely filed. See Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001). Petitioner contends that we have jurisdiction because the IJ violated due process by pretermitting his claim without a full hearing on the merits of the underlying asylum application. Because petitioner neither demonstrated that the IJ was required under 8 C.F.R. § 1208.4(a) to conduct a full hearing on the merits nor that he was prejudiced, his due process challenge is not “colorable” and we lack jurisdiction. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001).

Pursuant to Desta v. Ashcroft, 365 F.3d 741, 750-51 (9th Cir.2004), petitioner’s timely motion to stay removal included a timely request to stay voluntary departure. Because the motion to stay removal was granted, the voluntary departure period was also stayed, nunc pro tunc, as of the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate.

PETITION FOR REVIEW DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.