As v. Atty Gen USA , 300 F. App'x 159 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-13-2008
As v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4131
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4131
ZULKARNAINI AS; AMALIA ZULKARNAINI; DION FAUZAN; HOERRY
SATRIO; HADY THOYYIB; FITHRA FAUZANA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A72-372-248, A97-188-563, A97-188-564, A97-188-565, A97-188-566,
A97-188-567 )
Immigration Judge: Honorable Miriam K. Mills
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 12, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: November 13, 2008)
___________
OPINION
___________
PER CURIAM
Zulkairnaini As (“petitioner”) and his wife and four children, natives and citizens
of Indonesia, petition for review of the BIA’s decision denying them withholding of
removal. For the foregoing reasons, we will deny the petition for review.
Petitioner entered the United States on an F-1 student visa on May 14, 1994. On
October 24, 1994, the government approved petitioner’s application for a J-1 visa,
available to certain foreign students, scholars, and researchers. 8 U.S.C. § 1101(a)(15)(J).
Petitioner’s wife and children were admitted on November 30, 1994, on J-2 visas.
Petitioner filed an affirmative application for asylum on March 18, 2003. The
government issued a Notice to Appear on February 5, 2004, charging petitioner as
removable under INA § 237(a)(1)(C)(i), for overstaying his J-visa and charging
petitioner’s family as removable under INA § 237(a)(1)(A) for having been inadmissible
at the time of entry. Petitioner and his family sought asylum, withholding of removal and
protection under the Convention Against Torture (“CAT”) based on petitioner’s 2003
asylum application. The Immigration Judge determined that petitioner’s asylum
application was time-barred because he failed to file within one year of April 1, 1998,1
and he did not qualify for an exception. The IJ also determined that petitioner had not
met his burden of proof for withholding of removal or for CAT relief. The BIA denied
petitioners’ appeal, and petitioners timely filed a petition for review.
In their petition for review, petitioner and his family challenge the BIA’s
determination that petitioner had failed to meet his burden of proof on his claim for
1
Under regulations establishing the one-year filing deadline, anyone seeking asylum
who had entered the U.S. on or before April 1, 1997, was required to file his or her
application by April 1, 1998. See 8 C.F.R. § 1208.4(a)(2)(ii).
2
withholding of removal and raise a number of due process issues. Petitioner asserts that
he managed the Indonesian government’s family planning programs under the Suharto
regime, and that, while in Indonesia, he espoused moderate Muslim beliefs through the
MDI, or Counsel of Islamic Beliefs. Petitioner asserts that he fears for his safety because
of the rise of extreme Muslim terrorist organizations, and his identity as a moderate
Muslim and former Suharto official in charge of family planning programs. Specifically,
petitioner notes that an organization known as Jemaah Islamiyah has bombed various
locations in an effort to transform Indonesia into an Islamic theocracy, and that it has
claimed responsibility for detonating a bomb in Bali in 2002, which killed many people.
We have jurisdiction over final orders of removal. 8 U.S.C. § 1252(a)(1).
“Where the BIA renders its own decision and does not merely adopt the opinion of the IJ,
we review the BIA’s decision, not that of the IJ.” Wong v. Att’y Gen., 539 F.3d 225, 230
(3d Cir. 2008) (citation omitted). Under the substantial evidence standard, we will defer
to the BIA’s factual findings unless the evidence compels a contrary conclusion. Id. We
exercise de novo review over constitutional claims. 8 U.S.C. § 1252(a)(2)(D); Yusupov
v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008).
Petitioner asserts that the BIA erred in concluding that he was not more likely than
not to face persecution by Muslim extremists on account of his identity as a moderate
Muslim ex-official in the Suharto regime. Petitioner submitted evidence of tension
between Muslim extremists and moderate Muslims in Indonesia and a number of news
3
articles. Petitioner’s expert testified that petitioner had “some justification” for fearing
Muslim extremists, not on the basis of his moderate Muslim beliefs, but on the basis of
his involvement in the Suharto regime. (A.R. 179.) According to the expert witness, the
Suharto regime alienated many militant Islamic groups by restricting Islamic political
parties and preventing the implementation of Islamic law. (Id.)
We do not believe that this testimony, or any other aspect of the record, compels a
conclusion that petitioner faced a clear probability of persecution. Petitioner cites news
articles about radical Islamic groups seeking to establish Islamic law in Indonesia;
however, the articles fail to demonstrate that these groups have targeted moderate
Muslims or former Suharto-regime officials as opposed to committing generalized
violence and creating chaos.2 We agree with the BIA that petitioner has not demonstrated
a clear probability that he would be recognized as an ex-Suharto official so many years
after the regime dissolved, nor has he demonstrated that the harm he would face would
constitute persecution. Therefore, substantial evidence supports the BIA’s decision.
We also do not believe that the IJ improperly denied petitioner’s claim because of
general civil strife in Indonesia.3 Although petitioner correctly asserts that persecution
2
Petitioner also cites an article from Newsweek commenting on the tension between
Muslim extremists and other Muslims. (Pet. Br., 14.) However, the article focuses
narrowly on the Ahmadiyya sect of Islam. Petitioner’s reliance on this article to
demonstrate a large-scale assault by Muslim extremists on all moderates is misplaced.
(A.R. 1028-1030.)
3
Petitioner raised this argument before the BIA, but the BIA declined to address the
argument explicitly. Under these circumstances, we may examine the IJ’s opinion. See
4
may exist even in the context of generalized violence, we also note that generalized
violence does not excuse the petitioner from demonstrating a nexus between the
persecutory acts and a protected category. See Vente v. Gonzales, 415 F.3d 296, 301 (3d
Cir. 2005) (asylum claim possible amidst general social unrest where applicant had
received specific threats from paramilitary organizations accusing him of collaborating
with guerillas). While petitioner construes the IJ’s statements as evidence of confusion
about whether petitioner was required to show he was “singled out” by Muslim
extremists, it appears that the IJ was principally concerned by petitioner’s failure to show
a nexus between the Bali bombing of 2002 and petitioner’s identity as a moderate Muslim
and ex-official of the Suharto regime. Put another way, the IJ determined that petitioner
had failed to show that the Bali bombing even partly targeted this group, let alone
demonstrated a “clear probability” that petitioner would be persecuted. We do not
believe that the record compels a contrary conclusion.
Petitioner also contends that the IJ violated due process by exhibiting bias against
him and allegedly pre-judging the merits of his application. A non-citizen has a right to
due process in a removal hearing, which means an opportunity to reasonably present his
or her case. Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (citation omitted).
Such claims require a showing of “substantial prejudice” to the non-citizen. Id. (citation
Joseph v. Att’y Gen., 421 F.3d 224, 226 n.4 (3d Cir. 2005) (referring to IJ’s opinion to
“provide the proper context and background” for analysis of the BIA’s ruling).
5
omitted). Upon reviewing the record, we do not believe that the IJ pre-judged the
timeliness of petitioner’s asylum application,4 nor did she exhibit bias against the
petitioner or impermissibly fail to consider the evidence. The IJ’s preliminary remarks
merely placed petitioner on notice as to her doubts regarding the timeliness of his asylum
application, as he filed the application almost nine years after arriving in the U.S., and
that petitioner would be expected to address her concerns. Although the IJ demonstrated
impatience with the petitioner at points during his testimony, we agree with the BIA that
the IJ’s frustration appears to have stemmed from petitioner’s insistence on testifying in
English alongside the court-appointed translator, who was appointed at petitioner’s
behest. We agree also with the BIA that the IJ’s confusion as to petitioner’s last
residence in Indonesia caused no prejudice to petitioner. Nor do we believe that
petitioner has raised any other meritorious issues.
For the aforementioned reasons, the petition for review will be denied.
4
We note that the timeliness of petitioner’s asylum application is not before us, nor
would we have jurisdiction over the issue had petitioner raised it. Sukwanputra v.
Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).
6