Jaya v. Ashcroft , 169 F. App'x 596 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1945
HARJIADI HENDRA JAYA,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,*
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Selya and Howard, Circuit Judges.
William A. Hahn and Hahn & Matkov on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Jeffrey J.
Bernstein, Senior Litigation Counsel, and Carolyn M. Piccotti,
Trial Attorney, on brief for respondent.
September 8, 2005
____________________
*Alberto Gonzales was sworn in as United States Attorney General on
February 3, 2005. We have substituted him for John Ashcroft,
previous holder of that office, as the respondent. See Fed. R.
App. P. 43(c)92).
Per Curiam. Harjiadi Hendra Jaya, a citizen of Indonesia
of Chinese ethnicity, seeks judicial review of a decision of an
Immigration Judge ("IJ"), adopted by the Board of Immigration
Appeals ("BIA"), which dismissed his asylum application as untimely
and denied his application for withholding of removal on the
merits. For the reasons discussed below, we deny the petition.
A. Dismissal of Asylum Application
An alien who has applied for asylum must "demonstrate[]
by clear and convincing evidence that the application has been
filed within 1 year after the date of the alien's arrival in the
United States."1 8 U.S.C. § 1158(a)(2)(B). Otherwise, the alien
must "demonstrate[] to the satisfaction of the Attorney General
either [1] the existence of changed circumstances which materially
affect the applicant's eligibility for asylum or [2] extraordinary
circumstances relating to the delay in filing an application." Id.§ 1158(a)(2)(D).
Here, it is undisputed that Jaya filed his asylum
application more than one year after his arrival in the United
States. And the IJ and the BIA both found that Jaya's proffered
reasons for delay did not fall into either of these two exceptions.
This court is powerless to review that determination, Sharari v.
Gonzales, 407 F.3d 467, 473 (1st Cir. 2005) (quoting 8 U.S.C. §
1No such time limit applies to applications for withholding of
removal or relief under the Convention Against Torture.
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1158(a)(3) and collecting cases).
B. Denial of Withholding of Removal
Under the Immigration and Nationality Act, an otherwise
deportable alien may avoid removal by showing that the alien's life
or freedom would, more likely than not, be threatened in the
destination country because of the alien's race, religion,
nationality, membership in a particular social group, or political
opinion.2 8 U.S.C. § 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407,
429-30 (1984). An alien can make this showing in one of two ways.
If the alien demonstrates past persecution on one of the protected
grounds, a rebuttable presumption arises that the alien's life or
freedom would be threatened in the future on that basis, and the
burden shifts to the INS3 to prove by a preponderance of the
evidence that the alien's life or freedom would not be threatened
in the future, either because of improved country conditions or
because the alien could reasonably avoid the threat by relocating
to another part of the country. 8 C.F.R. § 208.16(b)(1); see Silva
v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005). If the alien cannot
2
This is a more stringent standard than that applicable to
asylum claims. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
3
In March 2003, the relevant functions of the INS were
transferred into the Department of Homeland Security and
reorganized as the Bureau of Immigration and Customs Enforcement
("BICE"). 6 U.S.C. § 291(a), as amended by the Homeland Security
Act, Pub. L. 107-296, § 471, 116 Stat. 2135, 2005. See United
States v. Watson, 386 F.3d 304, 306 n.1 (1st Cir. 2004). Any
references to INS after the effective date of the Homeland Security
Act should be understood as references to BICE.
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show past persecution, then the burden remains on the alien to show
that it is more likely than not that the alien's life or freedom
would be threatened in the future. 8 C.F.R. § 208.16(b)(2); see
Silva, 394 F.3d at 4.
Where, as here, the BIA adopts the reasoning of the IJ,
we review the decision of the IJ. Albathani v. INS, 318 F.3d 365,
373 (1st Cir. 2003). We review the IJ's factual findings under the
deferential substantial evidence test, under which the IJ's
determination must stand "unless any reasonable adjudicator would
be compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B); see Settenda v. Ashcroft, 377 F.3d 89, 93 (1st
Cir. 2004). In applying the substantial evidence standard, we
review the IJ’s decision based on the entire record, not merely the
evidence that supports the IJ’s conclusions. Gailius v. INS, 147
F.3d 34, 44 (1st Cir. 1998). We review the IJ's legal conclusions
de novo, affording some deference to her interpretation of the
applicable statutes. INS v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999).
Here, the IJ did not clearly decide whether Jaya had been
persecuted in the past on account of a protected ground: his
Chinese ethnicity. Although the IJ stated that it "does not appear
that [Jaya] w[as] particularly targeted on account of race"
(emphasis added), she went on to say that "even if I find that
[he] was targeted because of his ethnicity and/or race . . ., [he]
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still has not been able to meet the burden [of showing] . . . that
it is more likely than not that his life or freedom would be
threatened on account of that ground or grounds." Similarly,
without considering past persecution, the BIA "agree[d] that [Jaya]
failed to meet his burden of establishing that it is more likely
than not that he will be persecuted . . . upon his return to
Indonesia."
To the extent that the IJ and BIA continued to place the
burden on Jaya, without first determining whether or not he had
proven past persecution on account of a protected factor, they
erred. Cf. Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 22 (1st
Cir. 2004) (identifying such error in the asylum context).
However, any such error was harmless because, even assuming that
past persecution was established and the presumption of future
threats to Jaya's life or freedom was therefore triggered, any such
presumption was overcome by evidence of changed circumstances. See
Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2005).
In concluding that Jaya's life and liberty would not
likely be threatened if he returned to Indonesia, the IJ found that
Jaya continued to live in Indonesia with his parents for two more
years after the May 1998 riots, on which his claim of past
persecution is primarily based, and that his parents have continued
to live there without incident. Those facts are supported by
substantial evidence in the record. The 2002 State Department
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Report of Human Rights Practices contained in the administrative
record further supports the IJ's conclusion of no future threat to
Jaya's life or liberty on account of his Chinese ethnicity. That
report makes no mention of recent violence against ethnic Chinese,
much less establishes a pattern or practice of such persecution, as
Jaya argues. Although the report describes discrimination against
people of Chinese descent, discrimination, standing alone, does not
constitute persecution. Sharari, 407 F.3d at 475. Thus, even with
the presumption of future persecution, the evidence in the record
plainly demonstrates, by a preponderance of the evidence, that
conditions in Indonesia have so changed since 1998 that Jaya's life
or liberty would not likely be threatened on account of his Chinese
ethnicity if he were forced to return.4 See 8 C.F.R.
§ 208.16(b)(1).
Accordingly, we deny the petition. However, in so doing,
we remind the IJ and BIA of their responsibility to make precise
justifications for their decisions under the applicable legal
standards. See Yatskin, 225 F.3d at 10.
The petition for judicial review is denied.
4
Jaya has asked us to take judicial notice that the 1998 riots
targeted the ethnic Chinese. However, that purported fact concerns
only past persecution, which we are assuming here. Therefore, we
need not decide whether that is a fact or whether the purported
fact is judicially noticeable.
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