                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-2004

Wongso v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1468




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                                             NOT PRECEDENTIAL


              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                             NO. 03-1468


                      ADI WINATA WONGSO,
                            Petitioner

                                  v.

          JOHN ASHCROFT, ATTORNEY GENERAL,
       IMMIGRATION AND NATURALIZATION SERVICE,
                      Respondent


On Petition for Review of an Order of the Board of Immigration Appeals
                            No. A79-316-241




            Submitted Pursuant to Third Circuit LAR 34.1(a)
                           January 27, 2004

 BEFORE: NYGAARD, FUENTES and STAPLETON, Circuit Judges

                   (Opinion Filed February 4, 2004)




                     OPINION OF THE COURT
STAPLETON, Circuit Judge:

              Petitioner Adi Winata Wongso seeks review of an Immigration Judge’s

decision denying asylum, withholding of removal, and relief under the Convention

Against Torture (“Convention”), and finding that Petitioner had filed a frivolous

application for asylum. That decision was summarily affirmed by the Board of

Immigration Appeals (“BIA”). Petitioner also seeks review of the BIA’s decision to

summarily affirm without opinion the order of the Immigration Judge (“IJ”). We

determine that we are without jurisdiction to review Petitioner’s asylum claim. With

respect to the merits of Petitioner’s requests for withholding of removal and relief under

the Convention Against Torture, we conclude that the immigration judge’s adverse

credibility determination was supported by substantial evidence and that Wongso did not

meet his burden in demonstrating eligibility for either of these forms of relief. We reject

Petitioner’s argument with regard to the BIA’s summary affirmance procedure in light of

this Court’s recent en banc decision in Dia v. Ashcroft, 352 F.3d 228 (3d Cir. 2003).

With respect to the IJ’s determination that Petitioner filed a frivolous application for

asylum, however, we will grant the petition for review and remand because the IJ failed to

make the findings necessary to reach such a determination under the relevant statute and

implementing regulation.

              The parties are familiar with the facts and procedural history. Hence, we

limit ourselves to a brief statement of the reasons for our decision.


                                              2
                                              I.

              We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.

§ 1252(a)(1). See M ulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003). “[W]hen the

BIA issues an [affirmance without opinion (“AWO”)] under the streamlining regulations,

we review the IJ’s opinion and scrutinize its reasoning.” Dia v. Ashcroft, 353 F.3d 228,

245 (3d Cir. 2003) (en banc). The IJ’s adverse credibility determination and findings of

fact with respect to Petitioner’s withholding of removal and Convention claims must be

reviewed under the substantial evidence standard. See Tarrawally v. Ashcroft, 338 F.3d

180, 184 (3d Cir. 2003). “We will not disturb the IJ’s credibility determination and

findings of fact if they are ‘supported by reasonable, substantial and probative evidence

on the record considered as a whole.’” Id. (quoting Balasubramanrim v. INS, 143 F.3d

157, 161 (3d Cir.1998)) (internal quotation marks and citation omitted). Under the

substantial evidence standard, a petitioner “must show that the evidence he presented was

so compelling that no reasonable factfinder could fail to find” otherwise. I.N.S. v.

Elias-Zacarias, 502 U.S. 478, 483-84 (1992).

                                             II.

              An alien must prove by clear and convincing evidence that he or she filed

an asylum application “within 1 year after the date of the alien’s arrival in the United

States.” 8 U.S.C. § 1158(a)(2)(B). However, if the alien can establish the “existence of

changed circumstances which materially affect the applicant’s eligibility for asylum” or


                                              3
“extraordinary circumstances relating to the delay in filing an application,” 8 U.S.C. §

1158(a)(2)(D), failure to file a timely application may be excused. Petitioner admits that

he first entered the United States on April 24, 1998 from Indonesia and that he did not file

his application for asylum until March 15, 2001. Petitioner argues, however, that he

demonstrated to the IJ that there had been changed circumstances that materially affected

his asylum application because conditions in Indonesia were worsening at an “ever-

increasing rate” after he left in 1998.

              We are without jurisdiction to hear a challenge to the IJ’s determination that

Petitioner did not file a timely asylum application under 8 U.S.C. § 1158(a)(2)(B) and did

not qualify for relief under 8 U.S.C. § 1158(a)(2)(D). Section 208(a)(3) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(a)(3), provides that “[n]o

court shall have jurisdiction to review any determination of the Attorney General under

paragraph [(a)](2),” which includes the IJ’s determination with respect to whether

Petitioner’s asylum application was timely and whether changed circumstances or

extraordinary circumstances warrant waiving the one year time limitation for asylum

applications. See Tarrawally, 338 F.3d at 185 (“[T]he language of 8 U.S.C. § 1158(a)(3)

clearly deprives us of jurisdiction to review an IJ’s determination that an asylum petition

was not filed within the one year limitations period, and that such period was not tolled by

extraordinary circumstances.”). Accordingly, we may not consider Petitioner’s argument

that the untimeliness of his asylum application was excused under 8 U.S.C. §


                                             4
1158(a)(2)(D).

              In addition to finding that Petitioner had filed an untimely asylum

application and that no relief was warranted under 8 U.S.C. § 1158(a)(2)(D), the IJ ruled

in the alternative that, even assuming a timely application, Petitioner was not entitled to

asylum on the merits of his application. Petitioner challenges this decision on the merits.

Given that we lack jurisdiction to review the IJ’s determination with respect to the

timeliness of Petitioner’s asylum application, we need not review the merits of whether

Petitioner otherwise qualified for asylum.

                                               III.

              Petitioner casts his arguments with respect to past and future persecution

solely in terms of his asylum claim. As we have indicated, Petitioner’s asylum claim

must fail because the IJ determined that it was not timely. Petitioner does not contest in

his brief the IJ’s determinations with respect to withholding of removal or relief under the

Convention Against Torture. Petitioner has therefore waived any argument that the IJ

erred with respect to those determinations. See, e.g., Ansell v. Green Acres Contracting

Co., Inc., 347 F.3d 515, 526 (3d Cir. 2003).

              Even if there had been no waiver, we would still hold that the IJ’s adverse

credibility determination was supported substantial evidence and, therefore, that

Petitioner has failed to meet his burden with respect to eligibility for withholding of

removal. We would further hold that Petitioner had not demonstrated eligibility for relief


                                                5
under the Convention.

                                              A.

              Withholding of removal is to be granted “if the Attorney General decides

that the alien’s life or freedom would be threatened in [the country of removal] because of

the alien’s race, religion, nationality, membership in a particular social group or political

opinion.” 8 U.S.C. § 1231(b)(3)(A). “The alien must establish by a ‘clear probability’

that his life or freedom would be threatened in the proposed country of deportation. A

clear probability means ‘more likely than not.’” Tarrawally, 338 F.3d at 186 (internal

quotations and citations omitted).

              The IJ found that Wongso did not qualify for withholding of removal

because he was not credible and had presented no evidence suggesting that he had been

persecuted because of his membership in a class protected under 8 U.S.C. §

1231(b)(3)(A). Wongso admits that there were “some differences” between his testimony

in front of the IJ and statements that he had submitted in support of his application, but

argues that these “differences were not numerous and not serious.” Under the substantial

evidence standard of review, we cannot agree.

              In finding Wongso to be not credible, the IJ referred to several

inconsistencies between Petitioner’s testimony and written statements. We will briefly

note some of the inconsistencies relied upon by the IJ that are material to any claim of

persecution. The IJ recognized that Wongso testified in court as to an anti-Chinese


                                              6
demonstration occurring in June of 1997 that resulted in damage to his business, but

claimed in his affidavit that this incident occurred in November of 1997. Wongso’s

affidavit indicated that his wife’s Buddhist temple in Surabaya had been burned, but he

testified that a Buddhist temple in the town of Sumenep was destroyed and that nothing

had happened to the temple in Surabaya. Wongso further testified that his sister-in-law’s

house had been burned during riots by native Indonesians, but his affidavit indicated that

it was his sister’s house.

              The IJ also greatly relied on inconsistencies with regard to Wongso’s claim

that his own house(s) had been burned. Wongso first testified that his house was burned

in December of 2000, but his affidavit indicated that his house in Banyuwangi had been

burned in November of 2000. Petitioner then testified that, in addition to his house in

Banyuwangi being burned, his house in Sumenep was also burned. Later, Petitioner

contradicted this testimony by indicating that it was only his house in Banyuwangi that

had been burned. Petitioner then contradicted that testimony by stating that nothing had

ever happened to the Banyuwangi house. This statement was eventually retracted, and

Petitioner indicated that the Bangyuwangi house had been burned in 2000.1

              We must afford the IJ’s adverse credibility determination substantial

deference because “it is grounded in evidence in the record and . . . the IJ [has] provide[d]




   1
     The IJ noted other inconsistencies with respect to when Wongso was married and
the dates during which he operated his own business.

                                             7
specific cogent reasons for [his] determination.” Abdulrahman v. Ashcroft, 330 F.3d 587,

597 (3d Cir. 2003). The IJ identified specific contradictions between Wongso’s written

statements and testimony, and internal contradictions within Wongso’s own testimony.

The adverse credibility determination is therefore supported by substantial evidence. As

Wongso has presented no evidence of persecution because of membership in a protected

class under 8 U.S.C. § 1231(b)(3)(A), the IJ’s decision to deny withholding of removal

was proper.

                                               B.

              Under the Convention’s implementing regulations, “[t]he burden of proof is

on the applicant . . . to establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal. The testimony of the applicant, if

credible, may be sufficient to sustain the burden of proof without corroboration.” 8

C.F.R. § 208.16(c)(2). The torture must be inflicted “by or at the instigation of or with

the consent or acquiescence of a public official or other person acting in an official

capacity.” 8 C.F.R. § 208.18(a)(1). Evidence to be considered in determining whether it

is more likely than not that an applicant will be tortured in the proposed country of

removal includes: “(i) Evidence of past torture inflicted upon the applicant; (ii) Evidence

that the applicant could relocate to a part of the country of removal where he or she is not

likely to be tortured; (iii) Evidence of gross, flagrant or mass violations of human rights

within the country of removal, where applicable; and (iv) Other relevant information


                                               8
regarding conditions in the country of removal.” 8 C.F.R. § 208.16(c)(3).

              “[C]ountry conditions alone can play a decisive role in granting relief under

the Convention.” Tarrawally, 338 F.3d at 188 (quoting Kamalthas v. INS, 251 F.3d 1279,

1280 (9th Cir.2001)) (internal quotations omitted). “Accordingly, a decision-maker must

review claims for relief under the Convention and consider relevant country conditions

even where adverse credibility determinations have precluded relief under the INA.” Id.

              Wongso did not qualify for withholding of removal because the IJ found

him to be not credible. Wongso did, however, present some evidence of human rights

abuses in Indonesia by way of a State Department report. The IJ determined that Wongso

could avoid any possibility of torture or persecution if he relocated to Surabaya, a part of

Indonesia where Wongso’s parents reside. Under 8 C.F.R. § 208.16(c)(3)(ii), the IJ must

consider the ability of an applicant to relocate to another part of the country of removal

where the applicant is not likely to face torture. Here, the IJ noted that Wongso’s parents

reside in Surabaya, and that Wongso had not presented evidence of any potential

problems on Surabaya. Instead, Wongso testified that he did not want to go back and live

with his parents on Surabaya “[b]ecause as a married man, I have to live separate from

my parents” and “[f]or business reasons, it’s just the best to live in Sumenep . . . not

Surabaya.” The IJ properly determined that Wongso’s refusal to live in Surabaya with his

parents was sufficient to preclude relief under the Convention.

                                             IV.


                                              9
              Petitioner argues that he was denied Due Process rights under the United

States Constitution because the BIA subjected him to its streamlining regulations and

issued an affirmance without opinion of the IJ’s decision. Petitioner claims that he is

“entitled to a full and carefully considered review of the Immigration Judge’s decision

and . . . can not know whether his case was given such a review because the AWO

procedure was used.” This challenge is foreclosed by this Court’s recent en banc

decision in Dia v. Ashcroft, 353 F.3d 228, 238 (3d Cir. 2003) (“We agree with our sister

courts of appeals that have passed on this issue and conclude that the streamlining

regulations do not violate the Due Process Clause of the Constitution.”). Under Dia, the

Attorney General’s implementation of the streamlining regulations and the BIA’s

issuance of an affirmance without opinion does not per se violate either the INA or the

Constitution. We therefore conclude that Petitioner’s argument with respect to the AWO

process is foreclosed by Dia.

                                            V.

              The IJ found that Petitioner had filed a frivolous application for asylum

based upon the contradictions between Wongso’s testimony, affidavit, and asylum

application. The IJ determined that Wongso was aware of the contents of his asylum

application and affidavit, and nonetheless gave testimony that contradicted those

documents. Petitioner argues that the standard for finding that a frivolous application has

been filed is high, and that the differences between Wongso’s testimony, affidavit, and


                                            10
asylum application were not numerous or serious enough to warrant a finding by the IJ

that Wongso filed a frivolous application.

              8 U.S.C. § 1158(d)(6), which was enacted as part of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), provides:

              If the Attorney General determines that an alien has
              knowingly made a frivolous application for asylum and the
              alien has received the notice under paragraph (4)(A), the alien
              shall be permanently ineligible for any benefits under this
              chapter, effective as of the date of a final determination on
              such application.

Id.2 As explained in the Immigration Legislation Handbook, this provision is “one of the

most extreme provisions in IIRIRA. The provision permanently bars the alien from

receiving any nonimmigrant or immigrant benefit once it is triggered. Moreover, the bar

may not be waived under any circumstances.” Austin T. Fragomen, Jr., et al.,

Immigration Legislation Handbook § 7:95 (database updated April 2003). “The bar

covers any benefit under the INA, including immigrant or nonimmigrant entry.” Id. §



   2
     The Court of Appeals for the Eleventh Circuit has noted that this statute essentially
refers to fraudulent, as opposed to frivolous, applications.
                Synonyms for frivolous are “carefree, fanciful, fickle, giddy,
        flippant, nonchalant.” Roget, International Thesaurus (3d ed.1965). The
        dictionary defines frivolous as “insignificant, trivial, silly or gay.” Webster,
        New International Dictionary (3d ed.1961). We note perhaps that the statute
        is improperly captioned as “Frivolous Application.” A more appropriate
        caption perhaps would be “Fraudulent Application.” Here we think that the
        record very clearly reflects that [Petitioner] was sincere, albeit fraudulent, in
        his application. He was not nonchalant or flip. Neither was it insignificant
        or trivial to him.
Barreto-Claro v. U.S. Atty. Gen., 275 F.3d 1334, 1339 (11th Cir. 2001).

                                             11
7:105.

              8 C.F.R. § 208.20 sets forth the criteria an IJ or the BIA must address

before finding an application to be frivolous.

              [A]n applicant is subject to the provisions of section 208(d)(6)
              of the Act only if a final order by an immigration judge or the
              Board of Immigration Appeals specifically finds that the alien
              knowingly filed a frivolous asylum application. For purposes
              of this section, an asylum application is frivolous if any of its
              material elements is deliberately fabricated. Such finding shall
              only be made if the immigration judge or the Board is
              satisfied that the applicant, during the course of the
              proceedings, has had sufficient opportunity to account for any
              discrepancies or implausible aspects of the claim.

Id. (“implementing regulation”).

              After explaining various inconsistencies with Wongso’s testimony,

affidavit, and asylum application in conjunction with finding Wongso not credible, the IJ

in this case concluded as follows with respect to the frivolous application statute:

                      The Court finds that the Respondent has filed a
              frivolous application for asylum and this is based on the
              notorious number of contradictions between the Respondent’s
              testimony and his affidavit and his I-589 application.
              Pursuant to the regulations, this Court must find that the
              Respondent was aware of the contents of both his asylum
              application and his affidavit and consequently, should not
              have given testimony today which contradicts those two
              documents to such a degree. The Court would be rather naive
              to believe that the Respondent was attempting to deceive this
              tribunal, was attempting to lie to the Court for any other
              reason other than to obtain a benefit under the Act, that is, for
              this Court to grant him asylum.

Appendix at 11-12.

                                             12
              The IJ thus found that there were contradictions between Wongso’s

testimony, affidavit, and asylum application. However, even assuming that the IJ

believed all of the contradictions he noted (with respect to the adverse credibility

determination) to be “material” for purposes of the frivolousness determination, the IJ did

not make the specific findings required by § 208.20 as to which material statements

contained in Petitioner’s asylum application were false. There is, therefore, no finding to

review as to whether Wongso filed an application containing material statements that

were false.3 Similarly, while the IJ found that Wongso was “aware of the contents of both

his asylum application and his affidavit,” he did not make the specific finding also

required by § 208.20 that Wongso knew at the time of filing his application that a

specific, material element of that application was false. The record does reveal, however,

that Wongso was given ample opportunities to address the inconsistencies that the IJ

would eventually base his frivolous application finding upon. See Farah v. Ashcroft, 348

F.3d 1153, 1158 (9th Cir. 2003) (frivolous application determination reversed where, for

example, applicant not given opportunity to address discrepancies relied upon by IJ in




   3
      Simply noting inconsistencies between testimony and an asylum application, while
relevant to an adverse credibility determination, is not sufficient for a frivolous
application finding. For an example of a finding that an application was filed containing
a knowingly false material statement, see Barreto-Claro v. U.S. Atty. Gen., 275 F.3d
1334, 1339 (11th Cir. 2001) (affirming a finding that petitioner’s asylum application was
frivolous where petitioner recanted answers to certain questions on his asylum application
in his testimony in front of the IJ and merely tried to show why “concededly material
fabrications were knowingly made”).

                                             13
reaching that determination).

              The IJ in this case considered an adverse credibility determination to be

coextensive with a finding of frivolousness, finding frivolousness solely because of “the

notorious number of contradictions between the Respondent’s testimony and his affidavit

and his I-589 application.” The IJ simply repeated his finding that Wongso’s testimony

suffered from inconsistencies in concluding that Wongso filed a frivolous application,

without ever examining what specific material aspects of Wongso’s application were

knowingly false.

                                             VI.

              For the foregoing reasons, the petition for review will be granted only with

respect to the IJ’s frivolous application determination. We will vacate the BIA’s order of

January 28, 2003, affirming that determination, and remand this matter to that Board.

The BIA will direct the IJ either to vacate his order finding that Petitioner filed a

frivolous application, or to reenter that order after making the specific findings required

by 8 C.F.R. § 208.20.




TO THE CLERK:

              Please file the foregoing not precedential opinion.




                                              /s/ Walter K. Stapleton
                                                 Circuit Judge

                                              14
