Gdaiem v. Ashcroft

Full title: Mohamed Benhedi GDAIEM, Petitioner, v. John ASHCROFT, Attorney General…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 20, 2002

31 F. App'x 404 (9th Cir. 2002)

Opinion

31 Fed.Appx. 404 (9th Cir. 2002) Mohamed Benhedi GDAIEM, Petitioner, v. John ASHCROFT, Attorney General, Respondent. Nos. 00-71204, INS A46-060-765. INS No. A46-060-765. United States Court of Appeals, Ninth Circuit. February 20, 2002

Submitted February 11, 2002 ^*.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

On Petition for Review of an Order of the Board of Immigration Appeals.

Before B. FLETCHER, T.G. NELSON, and TALLMAN, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Mohamed Benbedi Gdaiem, a native and citizen of Tunisia, petitions for review of the Board of Immigration Appeals' ("BIA") decision dismissing his appeal from an immigration judge's ("IJ") denial of his application for asylum, withholding of removal, and relief under Article 3 of the United Nations Convention Against Torture ("Convention Against Torture"). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.

Gdaiem does not dispute that he was convicted of a crime of domestic violence under California Penal Code § 273.5. Therefore, the IJ properly found that Gdaiem was removable on that basis. See 8 U.S.C. § 1227(a)(2)(E)(i).

We lack jurisdiction to review the BIA's determination that Gdaiem failed to file his asylum application within one year of his entry into the United States. See Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001).

The BIA's decision denying withholding of removal and relief under the Convention Against Torture was supported by substantial evidence. Numerous inconsistencies between Gdaiem's oral testimony and his wife's testimony support the BIA's adverse credibility determination. See de Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir.1997). Therefore, Gdaiem failed to demonstrate that it is "more likely than not" that he will be persecuted or tortured were he to return. See Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999) (standard for withholding of deportation); see Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001) (standard under Convention Against Torture).

We do not reach Gdaiem's ineffective assistance of counsel argument because it was not presented to the BIA. See Cortez-Acosta v. INS, 234 F.3d 476, 480 (9th Cir.2000) (failure to raise an argument before the BIA deprives this court of jurisdiction).

PETITION FOR REVIEW DENIED.