Harry Richard Tuwo v. U.S. Attorney General , 312 F. App'x 216 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11881 FEBRUARY 13, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency Nos. A79-309-689, A79-309-690
HARRY RICHARD TUWO,
RITA SHERLY PAUNED,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 13, 2009)
Before BLACK, CARNES, AND BARKETT, Circuit Judges.
PER CURIAM:
Harry Richard Tuwo and his wife, Rita Sherly Pauned, natives and citizens
of Indonesia, seek review of the Board of Immigration Appeals’ decision to
dismiss their appeal of the Immigration Judge’s denial of their application for
asylum and withholding of removal under the Immigration and Nationality Act,
INA §§ 208, 241, 8 U.S.C. §§ 1158, 1231.1 The IJ found Tuwo ineligible for
asylum under the one-year time bar because he filed his application for asylum
over five years after he entered the United States, and he did not meet an exception
to the one-year deadline. As an alternative holding, the IJ concluded that Tuwo
ineligible for asylum because neither he nor his immediate family had experienced
persecution in Indonesia, and he failed to prove that any feared persecution was
countrywide. The IJ found Tuwo ineligible for withholding of removal because he
had failed to meet the threshold requirements for asylum.
The BIA did not explicitly adopt the IJ’s findings, so we review the BIA’s
decision. Al-Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review
legal challenges to the BIA’s decision de novo. Mohammed v. Ashcroft, 261 F.3d
1244, 1247–48 (11th Cir. 2001). The BIA’s factual determinations are reviewed
under the substantial evidence test, and we “must affirm the BIA’s decision if it is
supported by reasonable, substantial, and probative evidence on the record
1
Pauned was a derivative claimant on Tuwo’s application, so this opinion will refer to
Tuwo.
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considered as a whole.” Al-Najjar, 257 F.3d at 1284 (quotation marks omitted).
The substantial evidence test is “deferential” and does not allow “re-weigh[ing] the
evidence from scratch.” Mazariegos v. United States Att’y Gen., 241 F.3d 1320,
1323 (11th Cir. 2001) (quotation marks omitted). “[E]ven if the evidence could
support multiple conclusions, we must affirm the agency’s decision unless there is
no reasonable basis for that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1029
(11th Cir. 2004) (en banc).
I.
Tuwo contends that we have jurisdiction to consider his asylum claim
because the IJ made a legal error in concluding that the facts presented did not fall
within the definition of changed circumstances. He does not take issue with the
IJ’s findings of fact or the BIA’s acceptance of those facts. Instead, he argues that
the IJ and the BIA ignored BIA precedent by finding that he failed to meet an
exception to the one-year time bar. Therefore, he asserts that the BIA violated his
constitutional right to due process, and we have jurisdiction under the Real ID Act,
Pub.L.No. 109-13, 119 Stat. 231.
“We review de novo our subject-matter jurisdiction.” Sanchez Jimenez v.
United States Atty. Gen., 492 F.3d 1223, 1231 (11th Cir. 2007). An alien can
apply for asylum if he or she “demonstrates by clear and convincing evidence that
the application has been filed within 1 year after the date of the alien’s arrival in
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the United States.” INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). However, “an
[untimely] application for asylum of an alien may be considered . . . if the alien
demonstrates to the satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing an application
within the period specified . . . .” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D).
Even though the BIA has authority to consider an untimely asylum application
when the applicant meets an exception to the one-year deadline, “no court shall
have jurisdiction to review any determination of the Attorney General under
section 1158(a)(2).” Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287
(11th Cir. 2003) (quoting INA § 208(a)(3), 8 U.S.C. § 1158(a)(3)) (alterations and
quotation marks omitted). Under § 1158(a)(3), we do not have jurisdiction to
review the BIA’s determinations that an asylum applicant filed an untimely
application and failed to establish changed or extraordinary circumstances to
excuse his untimely filing. See id. (citing Fahim v. United States Att’y Gen., 278
F.3d 1216, 1217–18 (11th Cir. 2002)).
The BIA found that Tuwo arrived in the United States on February 13, 1995
but did not take any affirmative steps to seek asylum until he filed an application
dated April 20, 2001. The BIA determined that Tuwo’s asylum application was
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untimely and that no exception to the one-year filing requirement applied. The
BIA’s decision was based on findings of fact about evidence of Tuwo’s family’s
situation in Indonesia as well as the country conditions. There was no error of law
or due process violation. Accordingly, we lack jurisdiction to consider whether the
BIA erred in this regard, and the petition for review as to Tuwo’s asylum claim is
dismissed.
II.
Tuwo also contends that the BIA erred in denying his application for
withholding of removal. He asserts that his life or freedom would be threatened
due to a pattern and practice of persecution of Christians in Indonesia, and if he
returns to Indonesia, he is likely to be singled out for persecution in the future
because he is Christian. He argues that the evidence shows that Indonesian
Christians are subject to religiously motivated violence in Indonesia, including
killings and forced closure of churches, and law enforcement often does nothing to
combat that violence.
Tuwo contends that he cannot relocate within Indonesia because there is
countrywide violence against Christians, and he would face serious harm anywhere
in the country. Moreover, he asserts that the government of Indonesia’s failure to
remedy the situation and its tolerance of these abuses indicate that internal
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relocation is presumed unreasonable because the government is the persecutor or is
at least condoning persecution.
An alien shall not be removed to a country if his life or freedom would be
threatened on account of “race, religion, nationality, membership in a particular
social group, or political opinion.” INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). “An
alien seeking withholding of removal must show that it is ‘more likely than not’ he
will be subject to persecution based upon one of the five protected categories if
returned to his country.” Ruiz v. Gonzales, 479 F.3d 762, 766 (11th Cir. 2007).
“This is a more stringent standard than the ‘well-founded fear of persecution’
standard used with regard to applications for asylum.” Id. at 766 n.1 (citation
omitted).
Tuwo does not allege past persecution, but he “may still be entitled to
withholding of removal if he can demonstrate a future threat to his life or freedom
on a protected ground in his country.” Sanchez v. United States Att’y Gen., 392
F.3d 434, 437 (11th Cir. 2004). A well-founded fear of persecution can be
established based on “specific, detailed facts showing a good reason to fear that
[the applicant] will be singled out for persecution” on account of a protected
ground. Al-Najjar, 257 F.3d at 1287 (emphasis omitted) (asylum context).
Further, the alien must show that his fear of persecution is subjectively genuine
and objectively reasonable. Id. at 1289. “An alien cannot demonstrate that he
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more-likely-than-not would be persecuted on a protected ground if the [BIA] finds
that the alien could avoid a future threat by relocating to another part of his
country.” Sanchez, 392 F.3d at 437.
Tuwo does not claim that he was harmed in Indonesia because of his religion
or that any of his immediate family members have been harmed. The IJ found that
Tuwo failed to show that he would be singled out for persecution in Indonesia and
failed to show that he would be subject to countrywide persecution. The BIA
accepted those findings, and substantial evidence supports them. Accordingly, we
deny Tuwo’s petition.
PETITION DISMISSED IN PART, DENIED IN PART.
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