Meiliana v. Atty Gen USA , 242 F. App'x 861 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-24-2007
Meiliana v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2680
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-2680
__________
HANNY MEILIANA,
Petitioner,
vs.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
__________
On Petition for Review of an Order of
the Board of Immigration Appeals
U.S. Department of Justice
(BIA No. A96-265-018)
Immigration Judge: Donald V. Ferlise
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 20, 2007
Before: SLOVITER, SMITH, and GARTH, Circuit Judges.
(Opinion Filed: September 24, 2007)
__________
OPINION
__________
Garth, Circuit Judge:
Petitioner Hanny Meiliana seeks our review of the decision of the Board of
Immigration Appeals (“BIA”) affirming the decision of the immigration judge (“IJ”), who
denied her applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We will deny the petition for review.
I.
Petitioner Hanny Meiliana, a thirty year old female native and citizen of Indonesia,
entered the United States on June 18, 2000 on a nonimmigrant B-2 visa, which expired on
December 17, 2000. In March 2003, Meiliana filed an application for asylum, withholding
of removal, and protection under the CAT. On April 25, 2003, the Department of Homeland
Security served Meiliana with a Notice to Appear, charging that Meiliana was removable
under section 237(a)(1)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1227(a)(1)(B), for remaining in the United States longer than her visa authorized. Meiliana
conceded removability, but continued to seek asylum, withholding of removal, and protection
under the CAT.
II.
On January 26, 2005, the IJ conducted a hearing on the merits of Meiliana’s
applications for relief. At the January 26, 2005 hearing, Meiliana testified as follows.
Meiliana is an ethnic Chinese Christian. During Meiliana’s childhood, through the time she
went to college, ethnic Indonesians called her names like “dirty girl.” She was also required
to pay double the ordinary cost to obtain an Indonesian identification card. Meiliana testified
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that on three occasions men attempted to touch her on buses or trains, but that she
successfully avoided these attempts by changing seats and sitting with a group of women.
Meiliana reported these incidents to the police but they did nothing.
After graduating High School, Meiliana moved to Jakarta to attend a Chinese ethnic
college. While Meiliana attended college, ethnic Indonesian men often demanded money
from her and other students. Meiliana also testified that during the widespread rioting in
Indonesia in May 1998 she heard that a group of men were planning to attack her dormitory
and other dormitories in the area. Meiliana stated that the reason these dormitories were
targeted was because they housed mostly ethnic Chinese students. Meiliana admitted that
the attacks never occurred.
After college graduation, Meiliana began work near where she had attended college.
Meiliana testified that she waited two years after graduating college before coming to the
United States because she needed to obtain a passport and assist her mother with travel
arrangements. Meiliana testified that she is afraid of being returned to Indonesia because
there might be another riot in which she may be targeted because of her ethnic Chinese
origin. Meiliana conceded that there have been no such riots in Indonesia recently, but
contended that the current president is unpopular and that riots may break out if he does not
step down.
III.
In an oral decision dated January 26, 2005, the IJ denied Meiliana’s applications for
asylum, withholding of removal, and protection under the CAT. The IJ denied Meiliana’s
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asylum application because she did not file it within one year after she entered the United
States as required under the INA. The IJ rejected Meiliana’s assertion that her ignorance of
the rules regarding asylum relief constituted changed or extraordinary circumstances
sufficient to excuse noncompliance with the one year statutory deadline. With respect to the
remaining forms of relief – i.e., withholding of removal and protection under the CAT – the
IJ then found Meiliana’s testimony to be credible but insufficient to establish past persecution
or a likelihood of future persecution, or a clear probability that Meiliana would be tortured
if she was returned to Indonesia.1
Meiliana appealed to the BIA. In an order dated April 17, 2006, the BIA adopted and
affirmed the decision of the IJ and dismissed the appeal. The BIA noted that the IJ “correctly
determined that the respondent’s asylum application is time barred under the regulations and
that none of the exceptions applies.” The BIA also concurred with the IJ that Meiliana
“failed to meet her burden of proof in demonstrating that she suffered past persecution or has
a well founded fear of persecution upon return to Indonesia.”
IV.
We exercise jurisdiction to review the BIA’s final order of removal under INA §
242(a), 8 U.S.C. § 1252(a). Because the BIA adopted the findings of the IJ and also
commented on the sufficiency of the IJ’s determinations, this Court reviews the decisions of
1
The IJ also stated that even if Meiliana had filed a timely asylum application, such
an application would nevertheless be denied because she had failed to show a well-
founded fear of future persecution if returned to Indonesia.
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both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We review
these decisions for substantial evidence, considering whether they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998). The decisions must be affirmed
“unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v.
Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484
(3d Cir. 2001).
V.
We begin by noting that we lack jurisdiction to review the IJ’s finding that Meiliana’s
asylum application is time barred. The INA provides that “[n]o court shall have jurisdiction
to review any determination of the Attorney General” regarding the timeliness of an asylum
application or the existence vel non of changed or extraordinary circumstances justifying a
late filing. 8 U.S.C. § 1158(a)(2), (3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.
2003).
Although the subsequently enacted REAL ID Act amended the INA to allow
constitutional claims or questions of law to survive its jurisdiction-stripping provisions, see
REAL ID Act § 106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D), this court has held that claims
of changed or extraordinary circumstances to justify an untimely asylum application fall
within the Attorney General’s discretion and therefore do not raise a constitutional claim or
question of law covered by the REAL ID Act’s judicial review provision. Sukwanputra v.
Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). Thus, “despite the changes of the REAL ID
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Act, 8 U.S.C. § 1158(a)(3) continues to divest the court of appeals of jurisdiction to review
a decision regarding whether an alien established changed or extraordinary circumstances
that would excuse his untimely filing.” Mudric v. AG of the United States, 469 F.3d 94 (3d
Cir. 2006); Sukwanputra, 434 F.3d at 635. Accordingly, we are without jurisdiction to
review the denial of Meiliana’s asylum application.
VI.
The IJ and BIA found that Meiliana failed to demonstrate a clear probability that she
suffered past persecution because the harassment and other incidents recounted in her
testimony and asylum application do not rise to the level of “persecution” within the meaning
of the INA. See 8 U.S.C. § 1101(a)(42)(A). “[T]he concept of persecution does not
encompass all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). In Fatin, we defined
persecution as “threats to life, confinement, torture, and economic restrictions so severe that
they constitute a threat to life or freedom.” Id.; see also Lukwago v. Ashcroft, 329 F.3d 157,
168 (3d Cir. 2003); Lin v. I.N.S., 238 F.3d 239, 244 (3d Cir. 2001).
Here, none of the incidents described in Meiliana’s testimony or asylum application
rise to the level of severity that would constitute persecution. Name calling, solicitations for
money by native Indonesians, and higher fees to obtain an identification card clearly do not
constitute the extreme behavior rising to the level of persecution. Likewise, the IJ correctly
found that the attempted touchings Meiliana experienced while traveling on the train are
consistent with ordinary criminal activity rather than persecution on account of Meiliana’s
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Chinese ethnicity. See Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001) (“[O]rdinary
criminal activity does not rise to the level of persecution necessary to establish eligibility for
asylum.”); Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (“Lie’s account of two isolated
criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some
personal property and a minor injury, is not sufficiently severe to be considered
persecution.”). Finally, the May 1998 rumored attack on Meiliana’s dormitory – which never
occurred and resulted in no concrete harm – does not constitute past persecution because it
was insufficiently “imminent or concrete.” See Chavarria v. Gonzalez, 446 F.3d 508, 518
(3d Cir. 2006); Zhen Hua Li v. AG of the United States, 400 F.3d 157, 165 (3d Cir. 2005)
(holding that “unfulfilled threats, even death threats, do not qualify as past persecution unless
highly imminent”).
Nor has Meiliana demonstrated a clear probability of future persecution as required
to be eligible for withholding of removal. Ilchuk v. Attorney General, 434 F.3d 618, 624 (3d
Cir. 2006). To establish future persecution, Meiliana relies exclusively upon the Department
of State Country Report on Human Rights Practices for 2003 (“Country Report”) and the
Department of State International Religious Freedom Report for 2004 (“Religious Freedom
Report”).2 However, these reports do not support Meiliana’s claims of persecution. For
2
Meiliana also refers to the Department of State Country Report on Human Rights
Practices for 2005. However, we are unable to consider that report because, as Meiliana
acknowledges, it was not included in the administrative record. See Kamara v. AG of the
United States, 420 F.3d 202, 218 (3d Cir. 2005); Berishaj v. Ashcroft, 378 F.3d 314, 318
(3d Cir. 2004).
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example, while the Country Report indicates that there were many instances of
discrimination and harassment during the year, it also states that the Indonesian government
officially promotes racial and ethnic tolerance. According to the Country Report, ethnic
Chinese played a major role in the Indonesian economy and celebrated the Chinese “Lunar
New Year” as a national public holiday. There is no report of any violence – threatened or
actual – against ethnic Chinese citizens of Indonesia. The Religious Freedom Report
likewise provides no basis for finding that ethnic Chinese in Indonesia are subject to
persecution. See also Lie v. Ashcroft, 396 F.3d 530, 538 (3d Cir. 2005) (declining to find
that reports of widespread attacks on Chinese Christians in Indonesia, including press
accounts of riots, vandalism, and robbery targeting Chinese Christians constitute a pattern
or practice of persecution against Chinese Christians).
For these reasons, the IJ’s findings that Meiliana has failed to demonstrate past
persecution or a clear probability of future persecution are supported by substantial evidence,
and her application for withholding of removal was properly denied.
The IJ’s denial of protection under the CAT is also supported by substantial evidence,
as Meiliana has not provided any evidence “that it is more likely than not that [] she would
be tortured if removed to the proposed country of removal.” Sevoian v. Ashcroft, 290 F.3d
166, 175 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).
VII.
We will deny the petition for relief.
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