2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-17-2010

Jargalmaa Jagdorj v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3566

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3566

___________

JARGALMAA JAGDORJ;

BULGANTAMIR JARGALMAA,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A094-783-424 & A094-783-425)

Immigration Judge: Honorable Rosalind K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 10, 2010

Before: RENDELL, JORDAN and VAN ANTWERPEN , Circuit Judges

(Opinion filed: November 17, 2010)

___________

OPINION OF THE COURT

___________

PER CURIAM

Petitioners seek review of the final order of the Board of Immigration Appeals 

(“BIA”). For the following reasons, we will deny their petition.
2

I.

The lead petitioner is Jargalmaa Jagdorj, and the claims of her son Bulgantamir 

Jargalmaa are derivative of hers. Both are citizens of Mongolia who entered the United 

States in 2006 on visitor visas (Jagdorj‟s husband and an older son remain in Mongolia). 

Jagdorj applied for asylum, withholding of removal and relief under the Convention 

Against Torture (“CAT”) on the ground that she fears mistreatment in Mongolia on 

account of her political opinion. The Government charged her as removable under 8 

U.S.C. § 1227(a)(1)(B) for having overstayed her visa, which she concedes.

According to Jagdorj‟s asylum application and testimony before the Immigration 

Judge (“IJ”), she is a member of Mongolia‟s Democratic Party.1 In 2005, she worked as 

a secretary for a translation company. Another employee whose work she supervised, a 

man named Bataa, is a member of Mongolia‟s Communist Party. On September 8, 2005, 

Jagdorj discovered in a pile of documents that Bataa left for her to review a document 

implicating a member of the Communist Party in the theft of millions of Tugrugs 

(Mongolia‟s currency) from the Mongolian government and in plans to kill a Democratic 

Party member investigating the theft. Jagdorj asked Bataa about the document, but he 

claimed not to know what it was. She took the document with her.

Later that night, while she was walking with Bulgantamir, a car with four men in it 

hit him and fractured his leg. Bataa was a passenger in the car, and he got out and told 

 

1 Mongolia is a “multiparty, parliamentary democracy” which, since 2004,

has operated under a coalition government. (A.R. 156.) 
3

Jagdorj that if she told anyone about the document they would kill her children. She 

destroyed the document after that. Approximately one month later, she returned home to 

find Bataa and another man searching her house. They asked her if she had made copies 

of the document, and she told them no. Shortly thereafter, she began receiving 

threatening telephone calls every two days. The calls came from several men, one of 

whom she recognized as Bataa. She received these calls until leaving for the United 

States in February of 2006. Since she left, her husband and older child have gone into 

hiding because of the threats. On March 3, 2007, several men severely beat her older son 

while asking about her whereabouts. At some point, she learned that the investigator 

investigating the Communist Party member‟s theft had been killed. 

Jagdorj presented evidence in addition to this testimony, including recent country 

reports and a newspaper article regarding the automobile incident. The IJ found her 

testimony credible but denied relief. The IJ concluded, among other things, that she had 

not shown a political motive for the alleged persecution and had not shown that any 

mistreatment was by the Mongolian government or by forces that it is unable or unwilling 

to control. Jagdorj moved for reconsideration, which the IJ denied. She then appealed to 

the BIA, which dismissed her appeal on August 20, 2009. She now petitions for review.

2

 

2 We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA issued its 

own decision instead of summarily affirming the decision of the IJ, we review only the 

BIA‟s decision. See Fiadjo v. Att‟y Gen., 411 F.3d 135, 152 (3d Cir. 2005). We do so 

for substantial evidence and may not disturb the BIA‟s conclusions unless the evidence to 

the contrary “„was so compelling that no reasonable fact finder‟” could have reached 
4

II.

As an initial matter, the BIA held that Jagdorj waived her CAT claim because she 

did not meaningfully challenge its denial on appeal, and she also does not challenge it on 

review in this Court. Accordingly, we too deem it waived. See Alaka v. Att‟y Gen., 456 

F.3d 88, 94 (3d Cir. 2006). Jagdorj challenges only the BIA‟s rejection of her claims for 

asylum and withholding of removal. To be eligible for asylum, Jagdorj bore the burden 

of proving that she has a well-founded fear of persecution, meaning “„[1] past or potential 

harm rising to the level of persecution [2] on account of a statutorily enumerated ground 

[3] that is committed by the government or by forces the government is unable or 

unwilling to control.‟” Valdiviezo-Galdamez v. Att‟y Gen., 502 F.3d 285, 289 (3d Cir. 

2007) (citation omitted). To be entitled to statutory withholding of removal, Jagdorj bore 

the burden of proving that such persecution is more likely than not. See Gomez-Zuluaga 

v. Att‟y Gen., 527 F.3d 330, 348 (3d Cir. 2008).

The BIA concluded, among other things, that Jagdorj had not shown (1) any nexus 

between the mistreatment at issue and her political opinion or (2) that the mistreatment 

would be committed by the Mongolian government or by forces that it is unable or 

unwilling to control. Jagdorj devotes the majority of her brief to challenging the former 

conclusion. Because the latter is dispositive and supported by substantial evidence, 

however, we need only address the latter.

 

them. Id. (citation omitted); see also 8 U.S.C. § 1252(b)(4)(B) (BIA‟s finding “are

conclusive unless any reasonable adjudicator would be compelled to conclude to the 
5

Some additional factual background is relevant to this issue. After Bulgantamir 

was hit by the car, Jagdorj called the police but eventually took Bulgantamir to a hospital 

by taxi after the police failed to arrive. (A.R. 108-09.) Police met her at the hospital, 

then took her to the scene of the accident. (Id. at 109.) Jagdorj believes that they did not 

carefully consider the scene and treated the case in a “very easy manner.” (Id. at 132.) 

Jagdorj, however, did not tell them any of the details of what had transpired that day (i.e., 

the document and the threats). (Id. at 109.) Police later called her and told her they had 

determined that the incident was an accident. (Id.) They confiscated the car after the 

accident, but she does not believe that the driver was criminally charged. (Id. at 130-31.) 

The newspaper report she submitted states that the driver was speeding and that police 

told him he was “lucky” not to be going to prison. (A.R. 130, 242.) Jagdorj did not 

testify that she ever reported any of the other incidents or threats to police.

Jagdorj argues that the foregoing circumstances demonstrate that the Mongolian 

government is unable or unwilling to protect her against Bataa‟s threats. As the BIA 

explained, however, Jagdorj did not tell them the circumstances surrounding the 

automobile incident, so there is no basis to conclude that their determination that it was 

an accident constitutes unwillingness to protect her from Bataa‟s threats. Cf. 

Valdiviezo-Galdamez, 502 F.3d at 289 (granting petition where IJ ignored evidence that 

Honduran police failed to take action on five police reports regarding gang attacks). She 

also does not claim to have reported the other incidents or Bataa‟s threats to the police, 

 

contrary”).
6

and has not cited any evidence suggesting that the Mongolian government would be 

unable or unwilling to protect her if she had. Cf. Fiadjo, 411 F.3d at 160-63 (granting 

petition where BIA ignored evidence that petitioner unsuccessfully sought help from 

Ghanaian police and country reports indicated that police would not intervene in 

persecution at issue).

Jagdorj argues in her brief that reporting the threats would have been “tantamount 

to suicide” because the Communist Party was the “ruling party” at that time (Petr.‟s Br. at 

10-11), but she cites no evidence for that argument and our review of the record has not 

revealed any.3 To the contrary, the most recent country report of record (from 2006) 

states that Mongolia is a “multiparty, parliamentary democracy” operating under a 

“coalition government” and that “[t]he government or its agents did not commit any 

politically motivated killing[.]” (A.R. 156.) In sum, Jagdorj presented no evidence that 

the Mongolian government is unable or unwilling to protect her, let alone evidence 

sufficient to compel any reasonable factfinder to draw that conclusion.

Jagdorj also argues that the IJ abused her discretion in denying reconsideration and 

that the BIA issued an insufficiently reasoned decision. There is no merit to these 

arguments. Accordingly, the petition for review will be denied.

 

3

Jagdorj‟s counsel asked her during her hearing why she did not report the underlying 

circumstances of the automobile incident to police. Unfortunately, the transcript reports 

her response as “(Indiscernible).” (A.R. 109.) Jagdorj, however, neither makes any 

representation about the substance of her testimony on this point nor argues that she was 

prejudiced by its absence from the record.