Alim v. Atty Gen USA , 280 F. App'x 162 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-20-2008
Alim v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2382
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 07-2382 & 07-3393
(Consolidated)
___________
IRA DESIREE ALIM;
JIMMY TAIRAS KHO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A A95-144-583 & A70-868-690 )
Immigration Judge: Honorable Donald Vincent Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 14, 2008
Before: Chief Judge SCIRICA, FUENTES and GARTH, Circuit Judges
(Opinion filed: May 20, 2008)
___________
OPINION
___________
PER CURIAM
Petitioners, Ira Alim and Jimmy Kho, petition for review of a final order of
removal issued by the Board of Immigration Appeals (“BIA”) and petition for review of
the BIA’s denial of their motion for reconsideration of their final order of removal. For
the reasons that follow, we will deny both petitions.
Petitioners, wife and husband,1 are natives and citizens of Indonesia and are
Christians. Alim entered the United States on January 11, 1999, as a B-2 non-immigrant
visitor and was authorized to remain temporarily within the United States until February
10, 2000. On October 29, 2001, Alim was issued a Notice to Appear, which alleged that
she was in the country without authorization. Kho entered the United States on
November 5, 1998, as a B-2 non-immigrant visitor and was authorized to remain
temporarily within the United States until November 4, 1999. On November 19, 2001,
Kho was issued a Notice to Appear, which alleged that he was in the country without
authorization. In response, Petitioners applied for asylum, withholding of removal, relief
under the Convention Against Torture (“CAT”), and voluntary departure.
In denying their claims on September 19, 2005, the Immigration Judge (“IJ”)
concluded that Petitioners’ asylum applications were untimely. The IJ further found that
Petitioners had not satisfied the requirements for withholding of removal pursuant to
§ 241(b)(3)(A) or for relief under the CAT. The IJ granted their applications for
voluntary departure. On April 5, 2007, the Board of Immigration Appeals (“BIA”)
affirmed the IJ’s decision. Thereafter, Petitioners filed a timely petition for review.
(C.A. No. 07-2382.) On May 4, 2007, Petitioners filed a motion for reconsideration with
the BIA, which the BIA denied on July 10, 2007. On August 9, 2007, Petitioners filed a
1
Petitioners were married in the United States.
2
petition for review of the BIA’s denial of their motion for reconsideration, (C.A. No. 07-
3393), and moved to consolidate both petitions. The petitions for review have been
consolidated and are ripe for disposition.
Because the BIA’s decision, which dismissed Petitioners’ appeal, adopted a
portion of the IJ’s decision, we will review the determinations of both the BIA and the IJ.
See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). We will sustain their
determinations if they are supported by substantial evidence in the record. Id. Under the
substantial evidence standard, we will uphold the determinations of the BIA and the IJ
“unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v.
Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (citations omitted). We review the BIA’s
denial of a motion for reconsideration for an abuse of discretion. Nocon v. I.N.S., 789
F.2d 1028, 1033 (3d Cir. 1986). Under the abuse of discretion standard, the BIA’s
decision may be reversed only if it is “arbitrary, irrational, or contrary to law.” Sevoian v.
Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
In most cases, we have jurisdiction to review a final order of removal involving the
denial of asylum. 8 U.S.C. § 1252(a)(1). However, 8 U.S.C. § 1158(a)(3) provides that
no court shall have jurisdiction to review any determination regarding the timeliness of an
asylum application and the applicability of the exceptions. See Tarrawally v. Ashcroft,
338 F.3d 180, 185 (3d Cir. 2003). Petitioners argue that we have jurisdiction to review
the denial of their asylum applications because the IJ and the BIA failed to apply the
3
proper legal standard in determining the timeliness of their applications.2 More
specifically, Petitioners argue that the IJ and BIA failed to properly review the evidence
in the record by failing to consider Petitioner Alim’s psychological evaluation. We
disagree.
The IJ’s decision states, “[t]he Court has considered all of the reasoning that the
respondents have provided the Court as to why they filed an application in a tardy
fashion, and the Court, therefore, finds that none of these reasons amount to. . .
extraordinary circumstances as that term is defined.” (Petr.’s App. 11) (emphasis added).
On appeal, the BIA adopted and affirmed the IJ’s decision and reasoning for denying
Petitioners’ asylum applications and specifically stated that the Petitioners had failed to
“demonstrate the existence of extraordinary circumstances preventing them from filing
for asylum within the statutory and regulatory time limits.” (Id. at 12.) The BIA’s
decision denying reconsideration further reiterates that the BIA considered the evidence
in the record, stating “the respondent wife’s emotional impairment was considered but
was not deemed to have been of such nature as to excuse timely filing of the asylum
application.” (Id. at 3.)
2
In May 2008, the BIA issued a precedential opinion, albeit in another context, which
would appear to establish that “the Board may review questions of law, discretion, and
judgment and all other issues in appeals from decisions of immigration judges de novo”
rather than under a restrictive standard (“clearly erroneous”) applied to factual matters.
Matter of V-K, 24 I. & N. Dec. 500, 500, 2008 WL 2008855 (BIA 2008) (internal
quotations omitted).
4
Based on the foregoing, we conclude that the IJ and the BIA properly considered
the evidence in the record. Accordingly, because there is no legal error, we lack
jurisdiction to review the IJ’s and the BIA’s determination regarding the timeliness of
Petitioners’ asylum application and the applicability of the exceptions. See Tarrawally,
338 F.3d at 185.
Petitioners also argue that the IJ and the BIA erred in concluding that they failed to
establish past persecution on account of race, religion and membership in a particular
social group. See 8 U.S.C. § 1231(b)(3)(A). To obtain withholding of removal,
Petitioners must demonstrate a “clear probability” that their “[lives] or freedom would be
threatened” on account of one of the aforementioned grounds. Wang v. Gonzales, 405
F.3d 134, 139 (3d Cir. 2005); 8 U.S.C. § 1231(b)(3)(A). If, however, Petitioners establish
that they suffered past persecution it is presumed that their lives or freedom would be
threatened for purposes of withholding of removal. 8 C.F.R. § 1208.16(b)(1). The
Government may then rebut this presumption by proving certain criteria by a
preponderance of the evidence. See 8 C.F.R. § 1208.16(b)(A)-(B).
Petitioner Alim
At her hearing before the IJ, Alim testified that she was afraid to return to
Indonesia because, while residing there, she was the victim of an attempted rape. Two
Muslim men attacked her and her friend after their motorcycle broke down. An elderly
man stopped and prevented the men from raping her and assisted Alim and her friend in
5
returning home. Alim did not report the incident to the police. After that incident, she
worked from her home because she was afraid to go outside. Alim also testified that in
1998, her friend’s father was murdered. Several individuals broke into a store owned by
her friend’s parents, and then struck her friend’s father until he was unconscious. The
assailants then poured gasoline over his unconscious body and lit him on fire. The store
was located approximately one hour away from Alim’s residence. Alim also testified that
her brother still resides and works in Indonesia.
The IJ concluded, and the BIA affirmed, that the attempted rape incident, while
certainly horrendous, was an isolated criminal event, which was not motivated by Alim’s
ethnicity or religion. Alim argues that, because the IJ and the BIA failed to consider
whether she established persecution based on a particular social group, specifically her
gender, we should remand her case for further consideration. We disagree.
Alim’s application for withholding of removal asserts that she was persecuted on
account of being a “Chinese woman,” living in Indonesia, not simply as a female living in
Indonesia. (Petr.’s App. 90.) Alim’s membership in a social group is, therefore,
dependent on her ethnicity as well as her gender. Accordingly, the IJ’s conclusion that
the attempted rape of Alim was not motivated by her ethnicity addressed not only her
claim involving persecution on account of ethnicity, but also her claim involving
persecution on account of her membership in a particular social group, i.e., as a Chinese
woman.
6
We further conclude that the IJ’s and the BIA’s decisions regarding Alim’s
withholding of removal application are supported by substantial evidence in the record.
Alim’s account of isolated criminal acts do not rise to the level of persecution that would
compel a contrary conclusion to the determinations of the IJ and the BIA. See Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005). Furthermore, none of the incidents recounted
by Alim compels the conclusion that she has established a well-founded fear of future
persecution.
Petitioner Kho
Kho testified that he left Indonesia because conditions were chaotic. While
residing in Indonesia, his car was stopped by rioters, who then attacked him. The rioters
broke out the windows of his car, pulled him out of the vehicle, and kicked him in the
face. The rioters took his wallet and wristwatch, and broke his arm by hitting him with a
stick. A security guard eventually got Kho back into his vehicle and drove him away
from the scene. Kho testified that he went to the hospital as a result of the attack and
stayed overnight for treatment. He did not report the incident to the police. Kho also
testified that a threatening flyer had been put on his front porch, which stated, “kill the
Chinese”, and “we will impregnate the women.” Several of the flyers had been
distributed throughout Kho’s neighborhood. Additionally, when Kho last spoke to his
mother, who still resides in Indonesia, she told him that, while holding a worship meeting
at her home, three or four Muslim members of the community stopped by to question her
7
regarding the gathering in her home. Kho’s mother told the group that she was simply
visiting with friends. The group left, but warned Kho’s mother that she could not hold
prayer meetings without a permit.
Upon review of the record, we conclude that the determinations by the BIA and the
IJ are supported by substantial evidence. Persecution is defined as “threats to life,
confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS,
12 F.3d 1233, 1240 (3d Cir. 1993)). None of the incidents Kho testified regarding
compels a contrary conclusion to the findings of the BIA and the IJ.
Given the deferential standard of review that governs, we will not disturb the
decisions of the BIA and the IJ.3 For the foregoing reasons, we will deny Petitioners’
petitions for review. In light of our disposition of Petitioners’ petition for review,
Petitioners’ motion for a stay of removal is denied as moot. See Catney v. I.N.S., 178
F.3d 190, 196 n.9 (3d Cir. 1999).
3
Petitioners do not allege any incidents or likelihood of torture, and thus cannot meet
the criteria for relief under the CAT. 8 C.F.R. § 208.16(c)(2).
8