BIA

Bu rr, IJ

A95-467-484

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION

TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND FEDERAL RULE OF APPELLATE

PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A

SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED

BY THE NOTATION: "(SUMMARY ORDER)." UNLESS THE SUMMARY ORDER IS

AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

http://www.ca2.uscourts.gov/), THE PARTY CITING THE SUMMARY ORDER MUST FILE

AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN

WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE

REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN

WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on

the 8th day of January, two thousand and seven.

PRESENT:

HON. DENNIS JACOBS,

Chief Judge,

HON. RICHARD J. CARDAMONE,

HON. JOSÉ A. CABRANES,

Circuit Judges.

Rudy Harianto,

Petitioner,

-v.- No. 04-5503-ag NAC

Alberto R. Gonzales,1 Respondent.

FOR PETITIONER: Aleksander Milch, New York, New York.

FOR RESPONDENT: Randy G. Massey, Acting United States Attorney for the Southern District of Illinois, Jennifer Hudson, Assistant United States Attorney, Fairview Heights, Illinois.

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED with respect to petitioner's claims for asylum and relief under the Convention Against Torture ("CAT"). With respect to petitioner's claim for withholding of removal, the petition is GRANTED, the BIA's order is VACATED, and the case is REMANDED for further proceedings consistent with this decision.

Petitioner Rudy Harianto, a native and citizen of Indonesia, seeks review of a September 27, 2004 order of the BIA affirming the September 12, 2003 decision of Immigration Judge ("IJ") Sarah M. Burr pretermitting petitioner's application for asylum and denying his application for withholding of removal. In re Rudy Harianto, No. A 95 467 484 (B.I.A. Sept. 27, 2004), aff'g No. A 95 467 484 (Immig. Ct. N.Y. City Sept. 12, 2003). Where, as here, "the BIA adopts the IJ's decision and supplements it, this Court reviews the decision of the IJ as supplemented by the BIA." Yu Yin Yang v. Gonzales, 431 F.3d 84, 85 (2d Cir. 2005). We assume the parties' familiarity with the underlying facts and procedural history of the case.

This Court lacks jurisdiction to review petitioner's claims for asylum and CAT relief.

Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency's finding that an asylum application was untimely under 8 U.S.C. 1158(a)(2)(B), or its finding that neither changed nor extraordinary circumstances excuse the untimeliness under 8U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and "questions of law." 8 U.S.C. 1252(a)(2)(D). Petitioner has presented no such arguments, and we therefore lack jurisdiction to review the agency's denial of asylum. Furthermore, because Harianto waived his CAT claim before the IJ and raised no arguments regarding the claim to the BIA, we lack jurisdiction to consider it now. See 8U.S.C. § 1252(d)(1).

As for petitioner's withholding claim, we find that neither the IJ nor the BIA considered whether either [i] the destruction of Harianto's businesses on account of his ethnicity or [ii] the religious discrimination Harianto claims to have suffered as a Confucian constituted past persecution sufficient to raise a presumption that his "life or freedom would be threatened in the future" were he removed to Indonesia. 8 C.F.R. § 208.16(b)(1)(i).

For the foregoing reasons, the petition for review is DISMISSED for lack of jurisdiction with respect to petitioner's claims for asylum and CAT relief. With respect to petitioner's withholding claim, the petition for review is GRANTED, the BIA's order is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this decision. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).

FOR THE COURT: Thomas Asreen, Acting Clerk By:

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto R. Gonzales is automatically substituted for former Attorney General John Ashcroft as the respondent in this case.