Koe v. Atty Gen USA , 163 F. App'x 128 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-19-2006
Koe v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3894
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3894
YULIA KOE,
Petitioner
v.
ALBERTO R. GONZALES,
Attorney General of the United States*
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(No. A79-296-443)
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2006
Before: BARRY, AMBRO and ALDISERT, Circuit Judges
(Filed January 19, 2006)
OPINION
ALDISERT, Circuit Judge.
*
Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of
the United States pursuant to Rule 43(c)(2), Federal Rules of Appellate Procedure.
Yulia Koe, a native and citizen of Indonesia, files a petition for review from a final
order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s
(“IJ”) denial of her application for asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s order
pursuant to 8 U.S.C. § 1252. We will deny the petition.
I.
The parties are familiar with the facts and proceedings before the BIA and the IJ,
so we will only briefly revisit them here. Koe is an Indonesian of Chinese ethnicity who
testified that she had been repeatedly subject to harassment, allegedly because of her
ethnicity. In support of this contention she recited both general and specific instances of
abuse directed towards her and other ethnic Chinese. She testified to several events of
violence occurring on various Indonesian islands that she either read about or saw on
television where ethnic Chinese were treated poorly by ethnic Indonesians. She stated
that these events, which occurred sporadically over the course of a decade, made her feel
bad and occasionally scared. Koe testified that she had trouble obtaining the required
identification card that people in Indonesia are required to carry, and believes this
difficulty stemmed from her Chinese ethnicity. She also stated that people would touch
her buttocks if she wore pants, call her a dirty Chinese, and yell “You eat pork” at her, all
of which she found to be offensive.
In addition, she described four specific incidents of alleged persecution that
2
occurred either to her or her family. First, she testified to a 1997 incident where she was
robbed at knife point while she sat in her car at a traffic light. Second, she testified that a
beauty salon that she owned was burned during a 1998 riot. Third, she stated that her
family’s store was looted by ethnic Indonesians in another riot that same year. Finally,
she described an incident occurring in December 1998, where a group of homeless men
entered a taxi in which she was riding, held a knife to her throat, robbed her and then
touched and kissed her.
Following a brief visit to her family in Singapore in 1999, Koe was admitted to the
United States on November 9, 1999, on a non-immigrant visa with authorization to
remain in the country until May 8, 2000. Koe remained past that date, and on March 26,
2001, the INS commenced the present deportation proceedings against her by serving her
with a Notice to Appear. The IJ rejected all of Koe’s claims for relief, finding that Koe
failed to provide any evidence of torture or persecution sufficient to merit withholding of
removal or relief under CAT.1 The BIA affirmed the IJ without opinion. This petition for
review followed.
II.
Because the BIA adopted and affirmed the IJ’s decision without additional
comment, we review the decision of the IJ. Tarrawally v. Ashcroft, 338 F.3d 180, 184
1
Koe’s asylum application was never ruled upon by the IJ because she voluntarily withdrew it
from consideration, admitting that it was untimely and that extraordinary circumstances did not
exist to excuse its untimeliness. She thereafter proceeded before the IJ only upon her
withholding of removal and CAT claims.
3
(3d Cir. 2003). Whether a petitioner has demonstrated past persecution or a clear
probability of future persecution is a factual determination subject only to the highly
deferential substantial evidence standard. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-484
(1992); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under the substantial
evidence standard, this Court will uphold the findings of the BIA unless the evidence “not
only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477,
483-484 (3d Cir. 2001).
III.
Notwithstanding the contentions made by Koe to this Court that the IJ erred in
denying CAT relief, we lack jurisdiction to review the IJ’s denial of this claim. In her
brief to the BIA, Koe only argued that the IJ erred in its denial of withholding of removal
and never addressed why the adverse CAT rulng was in error.2 The BIA was therefore
never able to consider any arguments other than those relating to the withholding of
removal claim. Because Koe did not exhaust this claim before the BIA, it was not
preserved for our review and we therefore lack jurisdiction to review it. See 8 U.S.C. §
1252(d)(1) (“A court may review a final order of removal only if . . . the alien has
2
In her brief to the BIA, Koe does state in her introductory sentence that she is appealing the IJ’s
denial of asylum, withholding of removal and relief under CAT. Nowhere in her brief, however,
does she develop her argument on why the IJ erred in denying relief under CAT. We find such a
perfunctory mention of an unsupported contention to be insufficient to consider it raised on
appeal to the BIA. Cf. Dillinger v. Caterpillar, Inc., 959 F.2d 430, 447 (3d Cir. 1992) (stating
that a passing reference to a claim in an appellate brief without further development is
insufficient to preserve it for appeal).
4
exhausted all administrative remedies available to the alien as of right.”); Zheng v.
Gonzales, 422 F.3d 98, 107-108 (3d Cir. 2005) (“The failure to exhaust this claim before
the BIA ‘bars consideration of particular questions not raised in an appeal to the
[BIA].’”).
Similarly, we lack the ability to review Koe’s claim that the IJ erred in not granting
asylum relief. For this matter, it is not a question of whether she exhausted her remedies
before the BIA; rather, Koe never received a final ruling from the IJ on her asylum
petition. Koe withdrew the asylum application as untimely during the hearing and
acknowledged that there were no extraordinary circumstances that could excuse her
dilatory application. “To exhaust a claim . . . an applicant must first raise the issue before
the BIA or IJ.” Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005). Because Koe
withdrew her asylum application and never received a final ruling from the IJ, regardless
of the timeliness of the application, we therefore lack jurisdiction to review any claims on
appeal contending that a denial of asylum relief was in error.
IV.
We do possess jurisdiction to review Koe’s claims with respect to withholding of
removal. Nonetheless, we conclude that her contentions on appeal are without merit.
First, we are satisfied that the incidents of which Koe complains do not “rise to the level
of persecution because the harm suffered was not sufficiently severe.” Lie v. Ashcroft,
396 F.3d 530, 536 (3d Cir. 2005) (holding that petitioner, a Chinese Indonesian, did not
5
qualify for asylum relief, a less onerous standard than withholding of removal, when
petition was based upon two isolated incidents of robbery by native Indonesians). The
BIA and this Court have adopted a narrow definition of persecution, which “connotes
extreme behavior, including ‘threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.’” Ahmed v.
Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (quoting Fatin v. I.N.S., 12 F.3d 1233, 1240
(3d Cir. 1993)). “[P]ersecution does not encompass all treatment that our society regards
as unfair, unjust, or even unlawful or unconstitutional.” Fatin, 12 F.3d at 1240. We
accordingly agree with the IJ that Koe has not been the victim of persecution but rather
has unfortunately been, to quote the IJ, “in the wrong place at the wrong time” in her
repeated victimization by street crime, hoodlums and thugs.3
Moreover, in light of our determination that Koe has not been the victim of past
persecution, we also agree with the BIA and the IJ that Koe is not entitled to withholding
of removal because she failed to show a clear probability that her life or freedom would
be threatened on account of persecution if she returned to Indonesia. See I.N.S. v. Stevic,
467 U.S. 407, 429-430 (1984). An alien is entitled to withholding of removal only if she
can demonstrate a “‘clear probability’ that [her] life or freedom would be threatened in
3
Koe also argues that the IJ erroneously made a “speculative conclusion” when he found it
incredible that Koe would rather sit at a stoplight and be accosted by “knife wielding thugs” than
violate the traffic laws and escape in her automobile by running a red light. While the IJ’s
comments may appear speculative to some, we cannot say they are unreasonable in the context of
the situation described to him. The IJ, however, found all the other portions of Koe’s testimony
to be “basically . . . credible.”
6
the proposed country of deportation” because of “‘race, religion, [or] nationality.’”
Tarawally v. Ashcroft, 338 F.3d at 186 (quoting 8 U.S.C. § 1231(b)(3)(A); citations
omitted). “[C]lear probability means ‘more likely than not.’” Id. (quoting Stevic, 467 U.S.
at 429-430).
Finally, we find Koe’s attempt to link the culpability for these acts of violence to
the Indonesian government to be without merit. Notwithstanding the severity or the
reasons for the incidents of persecution, the petitioner must link the persecution either to
the government or groups that the government is unable or unwilling to control. Gao v.
Ashcroft, 299 F.3d at 272. Koe argues that she has been persecuted by “Nationalist
Indonesians” whom the government is unwilling or unable to stop. Here, however, the
record is entirely devoid of any evidence indicating that the Indonesian government was
unable or unwilling to control any group “persecuting” Koe on account of her race,
religion or nationality.
In sum, even if we accept as true Koe’s testimony that, on account of her Chinese
ethnicity, her beauty salon was burned in a 1998 riot, her family’s store was looted that
same year and on numerous occasions she was robbed, sometimes at knife point, the
evidence in the record does not compel us to find that these acts either rise to the level of
persecution, indicate a clear probability that Koe’s life would be threatened on return to
Indonesia or show that the deeds were linked to governmental action or purposeful
inaction.
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V.
We have considered all contentions presented by the parties and conclude that no
further discussion is necessary. The petition for review will be denied.
8