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


10-29-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4114




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-4114


                             ANASTASIA ELVIYANTI,

                                                                    Petitioner

                                           v.

                        JOHN ASHCROFT, Attorney General
                              of the United States,

                                                                    Respondent


                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A78-692-684)


                      Submitted under Third Circuit LAR 34.1(a)
                                  October 29, 2004

  BEFORE: SCIRICA, Chief Judge, and FISHER and GREENBERG, Circuit Judges

                               (Filed: October 29, 2004)


                             OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This matter comes on before this court on Anastasia Elviyanti’s petition for review

of a decision and order of the Board of Immigration Appeals entered September 17, 2003,
affirming a decision of an immigration judge of February 1, 2002, in this case. The

immigration judge set forth the background of the matter in his oral opinion denying

Elviyanti’s request for asylum, withholding of removal, and protection under the

Convention Against Torture. The proceedings had been instituted against Elviyanti

because she overstayed her authority to remain in the United States after being admitted

as a non-immigrant visitor. In rejecting her application, the immigration judge found that

she had “been totally incredible and therefore [had] not established a well-founded fear of

persecution . . . if she were returned to Indonesia.”

       On appeal the BIA indicated:

              We will affirm the decision of the Immigration Judge. See Matter of
       Burbano, 20 I&N Dec. 872, 974 (BIA 1994) (noting that adoption or
       affirmance of a decision of an Immigration Judge, in whole or in part, is
       ‘simply a statement that the Board’s conclusions upon review of the record
       coincide with those the Immigration Judge articulated in his or her
       decision’). Even if we were to find the respondent’s claim to be credible,
       she has not established past persecution, for nothing actually happened to
       her in her home country that was of a level of harm amounting to
       persecution. M oreover, she has established no nexus between her attackers
       and her religion, or any other protected ground. Finally, the respondent has
       not established that she fears persecution from the government, or from a
       group the government was unwilling or unable to control. Accordingly, the
       appeal is dismissed.

       We recently set forth the jurisdictional basis for review of removal orders in Chen

v. Ashcroft, 376 F.3d 215 (3d Cir. 2004), and in the same opinion set forth our standard

of review in such cases. It is sufficient to note that our jurisdiction is under section

242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), and that “[w]e



                                               2
review adverse credibility determinations for substantial evidence. Under this deferential

standard of review, we must uphold the credibility determination of the BIA or IJ unless

‘any reasonable adjudication would be compelled to conclude to the contrary.’ 8 U.S.C. §

1252(b)(4)(B). Accordingly, we are required to sustain an adverse credibility

determination ‘unless . . . no reasonable person’ would have found the applicant

incredible.” Chen, 376 F.3d at 222 (citations omitted).

       After our review of the matter and exercising the appropriate standard of review

we find no basis to grant Elviyanti relief. Accordingly, we will deny the petition for

review.




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