Nugroho v. Gonzales , 168 F. App'x 14 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2006
Charles R. Fulbruge III
No. 04-60248 Clerk
HADI NUGROHO; HELMA YUSUF HIDAYAT,
also known as Helma Nugroho,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75 232 831; BIA No. A76 824 706
Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.
PER CURIAM:*
Hadi Nugroho and his wife Helma petition for review of an
order from the Board of Immigration Appeals (“BIA”) affirming the
decision of the Immigration Judge (“IJ”) to deny their application
for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). The IJ determined that (1) the
Nugrohos’ claims for asylum were time barred; (2) the harm suffered
by Hadi Nugroho in the past did not rise to the level of
persecution; and (3) the Nugrohos had not established a reasonable
fear of future harm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
First, this court does not have jurisdiction to review
the Nugrohos’ asylum claims, because the BIA found those claims
time barred. See 8 U.S.C. § 1158(a)(3) (“No court shall have
jurisdiction to review any determination of the Attorney General
under paragraph (2) [providing for exceptions, including the time
bar, to an alien’s right to apply for asylum].”); see also Zhu v.
Ashcroft, 382 F.3d 521, 527 (5th Cir. 2005) (remanding to the BIA
because its affirmance without opinion left the court with “no way
of knowing whether the BIA affirmed the IJ's decision on a non-
reviewable basis, i.e., untimeliness, or a reviewable basis, i.e.,
the merits of [the] asylum claim”). In the instant case, the BIA
explicitly stated in its opinion that it “agree[d] that the asylum
application is time-barred” and that no circumstances existed to
excuse the delay in filing. Accordingly, this court cannot hear
the petitioner’s asylum claims.
The BIA’s decision denying petitioners withholding of
removal and relief under CAT, however, is reviewable by this court.
8 U.S.C. § 1252; Roy v. Ashcroft, 389 F.3d 132, 135 (5th Cir.
2004). The Attorney General must withhold removal of an alien who
proves a clear probability of persecution upon removal to his home
country. See 8 U.S.C. § 1231(b)(3)(A). However, “[t]he BIA will
be reversed only when the evidence is ‘so compelling that no
reasonable fact finder could fail to find’ the petitioner
statutorily eligible for relief.” Roy, 389 F.3d at 138 (quoting
2
INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S. Ct. 812
(1992)).
The Attorney General first contends that the petitioners
have waived their claims for withholding of removal and relief
under CAT by failing to brief them. See, e.g., FED. R. APP. P.
28(a)(9)(A); Salazar-Regino v. Trominski, 415 F.3d 436, 452
(5th Cir. 2005). The petitioners do spend most of their brief
arguing that they should be granted asylum, with scant reference
made to the more demanding withholding of removal standard. On
numerous occasions, this court has deemed claims for withholding of
removal and relief under CAT to be waived. See Liu v. Gonzales,
No. 04-60273 (5th Cir. Oct. 7, 2005); Mustafa v. Gonzales,
No. 04-60389 (5th Cir. May 25, 2005); Merchant v. Gonzales,
No. 04-60414 (5th Cir. Apr. 1, 2005); Muana v. Ashcroft, No. 04-
60222 (5th Cir. Dec. 14, 2005).
We need not decide whether the Nugrohos’ passing
references to withholding of removal and relief under CAT are
sufficient to raise them on appeal, however, because it is clear
that the IJ and BIA’s rulings rejecting those claims are supported
by substantial evidence.
The Nugrohos allegedly fear persecution in Indonesia
because Mr. Nugroho is ethnic Chinese. The IJ, however, found
Mr. Nugroho’s testimony regarding past persecution internally
inconsistent and different from his written application for asylum,
and the BIA affirmed this negative credibility determination.
3
Courts give “great deference to an immigration judge’s decisions
concerning an alien’s credibility.” Efe v. Ashcroft, 293 F.3d 899,
903 (5th Cir. 2002) (citing Chun v. INS, 40 F.3d 76, 78 (5th Cir.
1994)). Similarly, courts do not substitute judgment “for that of
the BIA or IJ with respect to the credibility of the witnesses or
ultimate factual findings based on credibility determinations.”
Chun, 40 F.3d at 78. Having reviewed the record, we find no basis
to disagree with the IJ’s and BIA’s finding of no past persecution.
See, e.g., Eduard, 379 F.3d at 187-88 & n.4; Mikhael v. INS, 115
F.3d 299, 304 & n.4 (5th Cir. 1997).
The Nugrohos can only succeed on their withholding of
removal claim if they prove that there is a clear probability, that
is, it is “more likely than not,” that they would be persecuted on
account of Mr. Nugroho’s ethnicity if they return to Indonesia.
See Roy,389 F.3d at 138. The IJ determined that the Nugrohos had
not met that burden, and that conditions for ethnic Chinese in
Indonesia were improving. The IJ further noted that no members of
Mr. Nugroho’s family, all ethnic Chinese, had been persecuted.
See Eduard, 379 F.3d at 193 & n.12 (noting that the safety of
family members is one factor courts can consider in an asylum
claim). Unlike in Eduard, the IJ did not commit an error of law by
finding the persecution against ethnic Chinese Christians1 as
merely symptomatic of a high level of violence in Indonesia,
1
The Nugrohos do not claim to be Christian or suffer persecution based
on their religion.
4
see id. at 189-91, or by requiring the petitioners to show that
they would be singled out among their ethnic group, see id. at 192.
Instead, the IJ pointed to evidence from several sources that
following anti-Chinese violence in Indonesia in 1998, the newly
installed government had undertaken to reduce ethnic tensions.
Discrimination against ethnic Chinese, while unfortunate, is not
persecution, as the IJ’s decision also suggests. The Nugrohos have
not shown that the evidence is so compelling that no reasonable
fact finder could fail to find them eligible for withholding.
Finally, to the extent that the Nugrohos make a CAT
claim, the IJ’s decision finding them ineligible for relief is
supported by substantial evidence, as the Nugrohos have not
proffered any evidence establishing a likelihood that they will be
tortured if returned to Indonesia. See Roy, 389 F.3d at 139-40.
For the reasons set forth above, we DENY the petition for
review.
DENIED.
5