                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1036




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-1036


                                   ANDI HARTONO,
                                            Petitioner

                                            v.

                             ALBERTO R. GONZALES,
                         Attorney General of the United States,*
                                               Respondent


                             Petition for Review of an Order
                          of the Board of Immigration Appeals
                                    (No. A78-725-291)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                Date: October 21, 2005

    Before: SCIRICA, Chief Judge, VAN ANTWERPEN and ALDISERT, Circuit Judges

                                (Filed October 24, 2005)




                              OPINION OF THE COURT


ALDISERT, Circuit Judge



*
 Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney
General of the United States pursuant to Fed. R. App. P. 43(c)(2).
       Andi Hartono, a native and citizen of Indonesia, files a petition for review from a

final order of the Board of Immigration Appeals (“BIA”), which adopted and affirmed the

decision of the Immigration Judge (“IJ”) denying his application for asylum and

withholding of removal. We must decide whether the BIA, in affirming the IJ, properly

denied Hartono’s applications for asylum and withholding of removal. We have

jurisdiction to review the BIA’s order pursuant to 8 U.S.C. § 1252. We will deny the

petition.

                                             I.

       Because we write only for the parties who are familiar with the facts, the

procedural history and the contentions presented, we will not recite them except as

necessary to the discussion.

                                            II.

       Hartono is a Christian Indonesian of Chinese ethnicity, who testified that he had

been subject to harassment by native Indonesians since junior high school on account of

his ethnicity. He testified to four separate instances of harassment and alleged

persecution. First, Hartono testified that in 1984, twelve Indonesians stopped him on a

road while he was riding a motorcycle, punched him and robbed him of a necklace.

Second, he testified also that during high school, students from another school

periodically stopped him and demanded money from him. Third, he complained of

general rioting at soccer games by “bad people” on or about May 1998 and that outbreaks



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of rioting in the city of Balung degenerated into anti-Chinese violence against him.

Fourth, and finally, he said that ten Muslim Indonesians stopped him on a road while he

was riding a motorcycle, called him “Chinese” and demanded money from him. In this

altercation he testified that the men punched him, robbed him of his wallet, struck him

with a stick and broke his teeth.

        As a result of this last incident, he said that he spent one week in the hospital.

Upon release from the hospital, in fear for his life, Hartono applied for a tourist visa at the

United States embassy in June 1998, and entered the United States on July 10, 1998. At

no time did he seek to extend this visa.

                                              III.

        Because the BIA adopted and affirmed the IJ’s decision with additional comment,

we review both the decision of the BIA and the IJ. Abdulai v. Ashcroft, 239 F.3d 542,

548-549 (3d Cir. 2001). Whether a petitioner has demonstrated past persecution or a

clear probability of future persecution is a factual determination subject only to the highly

deferential substantial evidence standard. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-484

(1992); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “The administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (codifying Elias-Zacharias, 502 U.S. at 483-

484).

                                              IV.



                                               3
       We do not have jurisdiction to review the BIA’s denial of Hartono’s application

for asylum as untimely. To be considered for asylum relief, an alien must “demonstrate

by clear and convincing evidence that the application has been filed within 1 year after

the date of the alien’s arrival in the United States.” 8 U.S.C. §1158(a)(2)(B).

Furthermore, courts lack jurisdiction to review determinations made by the Attorney

General as to the timeliness of such applications. 8 U.S.C. §1158(a)(3); Tarrawally v.

Ashcroft, 338 F.3d 180, 185-186 (3d Cir. 2003).

       Hartono entered the United States on July 10, 1998, but did not apply for asylum

until November 24, 2000. The BIA noted, in its December 15, 2003 order, that

“[Hartono] was authorized to remain until January 10, 1999, but did not file an asylum

claim within a reasonable period of time following loss of authorized status.” It also

determined that Hartono “failed to file an application for asylum by April 1, 1998, or

within one year of his last entry, and failed to show extraordinary circumstances relating

to the delay or worsened country conditions.” 1 We therefore lack jurisdiction to review

the BIA’s denial of Hartono’s asylum petition as untimely.




                                             V.


1
  As Hartono did not arrive in the United States until July 10, 1998, the BIA evidently
misstated the deadline for his filing an asylum application. Hartono was entitled to file
for asylum for one year following July 10, 1998, or a reasonable period of time following
the loss of authorized status on January 10, 1999. The BIA’s misstatement was harmless
error, however.

                                             4
       We agree with the BIA and the IJ that Hartono is not entitled to withholding of

removal because he failed to show a clear probability that his life or freedom would be

threatened on account of persecution if he returned to Indonesia. See I.N.S. v. Stevic, 467

U.S. 407, 429-430 (1984). An alien is entitled to withholding of removal only if he can

demonstrate a “‘clear probability’ that his life or freedom would be threatened in the

proposed country of deportation” because of “race, religion, [or] nationality.” Tarawally,

338 F.3d at 186. “[C]lear probability means ‘more likely than not.’” Id. Under the

substantial evidence standard, this Court will uphold the findings of the BIA unless the

evidence “not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,

242 F.3d 477, 483-484 (3d Cir. 2001).

       We are satisfied that the incidents of which Hartono complains do not “rise to the

level of persecution because the harm suffered was not sufficiently severe.” Lie v.

Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding that petitioner, a Chinese Indonesian,

did not qualify for asylum relief, a less onerous standard, when petition was based upon

repeated incidents of robbery by native Indonesians). The BIA and this Court have

adopted a narrow definition of persecution, which “include[s] threats to life, confinement,

torture and economic restrictions so severe that they constitute a threat to life or

freedom.” Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993). “[P]ersecution does not

encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional.” Id.



                                              5
       Even if we accept as true Hartono’s testimony that on numerous occasions he was

robbed, sometimes violently, on account of his Chinese ethnicity, the evidence in the

record does not compel us to find that these acts either rise to the level of persecution or

indicate a clear probability that Hartono’s life would be threatened on return to Indonesia.

Cf. Lie, 396 F.3d at 536 (“[Petitioner’s] account of two isolated criminal acts, perpetrated

by unknown assailants, which resulted only in the theft of some personal property and a

minor injury, is not sufficiently severe to be considered persecution.”). We therefore

agree that Hartono may have been the unfortunate victim of robbery by criminals, but we

are also in accordance with the BIA and the IJ that these actions do not rise to the level of

persecution or indicate a likelihood of future persecution.

                                             VI.

       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary. The petition for review will be denied.




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