Rofita v. Ashcroft

118 F. App'x 315

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 13, 2005
• Docket: No. 03-73138; Agency No. A79-194-176
• Status: Published

Opinion

MEMORANDUM

**

Ellya Rofita, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

We lack jurisdiction to review the discretionary decision that Rofita’s asylum application was untimely. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002) (citing 8 U.S.C. § 1158(a)(3)).

We have jurisdiction under 8 U.S.C. § 1252, to review the BIA’s dismissal of Rofita’s remaining claims. Substantial evidence supports the BIA’s findings that Rofita failed to demonstrate that it is more likely than not that she would suffer persecution if returned to Indonesia, as required to qualify for withholding of removal. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-85 (9th Cir.2003). In addition, Rofita is not entitled to CAT relief because she failed to demonstrate that it is more likely than not that she would be tortured if returned to Indonesia. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003).

Pursuant to Desta v. Ashcroft, 365 F.3d 741, 749-50 (9th Cir.2004), Rofita’s motion for stay of removal included a timely request for stay of voluntary departure. Because the stay of removal was continued, 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 in part and DENIED in part.

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.