As v. Attorney General of United States ( 2008 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    Recommended Citation
    "As v. Atty Gen USA" (2008). 2008 Decisions. Paper 237.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/237
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    NOT PRECEDENTIAL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