Tombuku v. Gonzales

121 F. App'x 769

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2005
• Docket: No. 03-70808
• Status: Published

Opinion

MEMORANDUM

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Chenny Tombuku, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“IJ”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the IJ’s determination that Tombuku failed to file her asylum application within one year of her arrival in the United States as required by 8 U.S.C. § 1158(a)(2)(B). See Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001).

We review the denial of withholding of removal for substantial evidence. Id. at 816. The record shows that in 1998 Tombuku, an ethnic Chinese Christian, was robbed at knifepoint and was present when a store was looted and a church was burned. Substantial evidence supports the denial of Tombuku’s application for withholding of removal, because the record does not compel the conclusion that it is more probable than not that she would suffer future persecution in Indonesia. See Hoxha v. Ashcroft, 319 F.3d 1179, 1185 (9th Cir.2003).

Moreover, because there is no evidence in the record that Tombuku was tortured while living in Indonesia or would more likely than not be tortured if returned to Indonesia, her CAT claim also fails. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir.2001).

Pursuant to Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), Tombuku’s motion for stay of removal included a timely request for stay of voluntary departure. Because the motion for stay of removal was continued based on the government’s filing of a notice of non-opposition, 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; DENIED in part.

Th.iS 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.