                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2348




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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-2348


                                JANTJE TIMBULENG,
                                              Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent




              Petition for Review from the Board of Immigration Appeals
                               Agency No. A95-829-985


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 7, 2006


               BEFORE: ROTH and GREENBERG, Circuit Judges, and
                        BUCKWALTER, District Judge*

                                 (Filed: April 6, 2006)




*Honorable Ronald L. Buckwalter, Senior Judge of the United States District Court for
 the Eastern District of Pennsylvania, sitting by designation.




                                      OPINION
BUCKWALTER, Senior District Judge.

              Petitioner Noke Jantje Timbuleng (Timbuleng) seeks to reopen immigration

proceedings on account of new evidence regarding the conditions for Christians in

Indonesia and alleged ineffective assistance of counsel. An Immigration Judge (IJ)

denied Timbuleng’s motion because: (1) the “evidence sought to be offered was available

and could have previously been presented,” and (2) Timbuleng failed to comply with the

procedural requirements of Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988), which are

necessary to raise on ineffective representation claim. (App. 237.) The Board of

Immigration Appeals (BIA) affirmed. The BIA found that Timbuleng substantially

complied with Lozada’s requirements, but failed to “demonstrate[] prejudice flowing

from his former attorney’s allegedly ineffective representation, [because] his motion

fail[ed] to establish prima facie eligibility for the relief sought.” (App. 2.) We conclude

that the BIA’s findings of fact are supported by substantial evidence and that its

conclusion to deny Timbuleng’s motion to reopen was not an abuse of discretion.

Therefore, the BIA’s decision will be affirmed.

I. FACTS AND PROCEDURAL HISTORY

              Timbuleng is a citizen of Indonesia who was admitted into the United States

on March 17, 2001 as a non-immigrant visitor for business with authorization to remain

in the United States until April 15, 2001. On April 9, 2003, the Immigration and

Naturalization Service (INS) issued a Notice to Appear (NTA) charging Timbuleng with



                                             2
being removable as an alien who remained in the United States for a time longer than

permitted after admission as a non-immigrant. On April 23, 2003, Timbuleng incorrectly

submitted an asylum application to the Department of Homeland Security (DHS) instead

of submitting the application to an Immigration Judge (IJ).1 The DHS rejected and

returned Timbuleng’s asylum application because it was incomplete.2

               On May 15, 2003, Timbuleng, represented by his former counsel, appeared

before an IJ. Timbuleng admitted to the factual allegations contained in the NTA and that

he was deportable as charged. In lieu of removal, Timbuleng requested asylum,

withholding of removal, protection under the Convention Against Torture, and voluntary

departure. The IJ reminded Timbuleng that his asylum application had been rejected and

returned as incomplete, and gave him until June 12, 2003 to submit a completed

application to the immigration court. Timbuleng never submitted a completed asylum

application.

               On October 6, 2003, the IJ found Timbuleng removable as charged and

granted his request for voluntary departure. At that time, Timbuleng withdrew his

applications for asylum, withholding of removal, and protection under the Convention



   1
     Timbuleng’s asylum application was “incorrectly filed because the IJ, rather than the
DHS, had exclusive jurisdiction over the asylum application once [Timbuleng] was
placed in removal proceedings.” (App. 236 n.2.)
   2
     In addition to being incomplete, Timbuleng’s asylum application was untimely
because it was filed more than one year after his arrival in the United States. (App. 236
n.2)

                                             3
Against Torture, and waived his right to appeal.

              On October 31, 2003, through new counsel, Timbuleng filed a motion to

reconsider the October 6, 2003 decision “in light of the violent conditions that exist in

Indonesia and [Timbuleng’s] specific fears” of returning to Indonesia. (App. 245.) In

support of his motion, Timbuleng submitted new evidence, including personal statements

explaining his experiences in Indonesia and a collection of news reports detailing the

violence and turmoil there.

              On January 2, 2004, the IJ denied Timbuleng’s motion, treating it as both a

motion to reconsider and a motion to reopen. The request for reconsideration was denied

because Timbuleng “failed to identify any specific factual or legal error in the prior

decision.” (App. 237.) The request to reopen was denied “because the evidence sought

to be offered was available and could have previously been presented.” Id. In addition,

the IJ found that Timbuleng did not allege or establish changed country conditions in

Indonesia. Finally, the IJ found that Timbuleng failed to properly raise an ineffective

assistance of counsel claim under Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988).

              Timbuleng appealed the IJ’s January 2, 2004 decision to the BIA. On

September 12, 2004, the BIA affirmed without opinion the IJ’s denial of Timbuleng’s

motion to reconsider and reopen. Timbuleng did not seek review of the BIA’s decision.

              On October 12, 2004, Timbuleng filed a motion to reopen and a motion for

a stay of removal with the BIA. In support of his motion, Timbuleng submitted an



                                              4
affidavit and several internet articles describing the conditions in Indonesia.3 In his

affidavit, Timbuleng for the first time stated that Christian services met in his home and

that as a result, Muslims entered his home, slapped him on the face, told him to stop the

services, and “broke glass in [his and his guests’] cars.” (App. 17-18.) According to

Timbuleng, similar incidents occurred on about six different occasions. (App. 18.)

              On March 31, 2005, the BIA denied Timbuleng’s motion to reopen,

resulting in the present appeal.

II. DISCUSSION

              Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to an

alien who is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). An applicant

must show that he or she

              is unable or unwilling to return to, and is unable or unwilling to
              avail himself or herself of the protection of [the country of such
              person’s nationality or in which such a person last habitually
              resided], because of persecution or a well-founded fear of
              persecution on account of race, religion, nationality,
              membership in a particular social group, or politician opinion .
              ...

8 U.S.C. § 1101(a)(42)(A). In the present case, the BIA found that Timbuleng failed to

establish a prima facie case for asylum because the evidence submitted does not

“establish past persecution or a well-founded fear of persecution, or that the respondent



   3
     The internet articles submitted to the BIA in support of Timbuleng’s motion to
reopen were different than those previously submitted to the IJ in support of his motion
for reconsideration.

                                              5
more likely than not will be persecuted or tortured if removed to Indonesia.” (App. 2.)

The BIA reasoned that “the incidents of harm are too random and sporadic to show either

a reasonable possibility or a clear probability that respondent will be harmed in a manner

that rises to the level of persecution or torture.” Id.

              When a motion to reopen is denied for failure to establish a prima facie

case, the BIA’s findings of fact should be reviewed for substantial evidence and the

ultimate decision to deny the motion should be reviewed for abuse of discretion. Sevoian

v. Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002). Timbuleng argues that the BIA abused its

discretion in two ways. First, Timbuleng claims that the BIA erred in applying the “more

likely than not” standard of proof instead of the more generous “well-founded fear”

standard. Timbuleng points out that the well-founded fear standard requires a finding of

“reasonable possibility” and not reasonable “probability.” Second, Timbuleng argues that

his “affidavit alone establishes past persecution” and that he has a well-founded fear of

returning to Indonesia based on his past experiences.4 (Petit. Br. at 6.)

              Timbuleng’s first argument fails because the BIA clearly stated in its

opinion that the “incidents of harm are too random and sporadic to show either a

   4
      In his brief to this Court, Timbuleng also presented the following issue for review
concerning the untimeliness of his asylum application: “Although the Immigration Court
found that petitioner sat on his right the BIA made no mention of it and therefore should
not [sic] this issue be resolved in petitioner’s favor.” (Petit. Br. at 2.) Timbuleng did not,
however, include this issue in the argument portion of his brief. It is not necessary for us,
as it was not necessary for the BIA, to address whether Timbuleng’s asylum application
was timely because we find that Timbuleng is not eligible for asylum.


                                               6
reasonable possibility or a clear probability that [Timbuleng] will be harmed in a manner

that rises to the level of persecution or torture.” (App. 2) (emphasis added). Therefore,

the BIA did apply the proper “reasonable possibility” standard advocated by Timbuleng.

              Timbuleng’s second argument fails because he has not established past

persecution or a well-founded fear of future persecution. With regard to past persecution,

Timbuleng claims that Muslims threw stones at his house, told him to stop holding

religious services, slapped him on the face, and “broke glass in [his and his guests’] cars.”

(App. 18.) Persecution is defined as “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993). This Court has recognized that “[r]andom, isolated

criminal acts perpetrated by anonymous thieves do not establish persecution.” Lie v.

Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Gormley v. Ashcroft, 364 F.3d 1172,

1177 (9th Cir. 2004)). In Lie, the Court held that the 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, [were] not sufficiently severe to be

considered persecution.” Lie, 396 F.3d at 536. Like the facts of Lie, Timbuleng has

alleged isolated criminal acts which, even if motivated by religion, are not sufficiently

severe to be considered persecution. Therefore, the BIA did not err in holding that the

incidents alleged by Timbuleng do not rise to the level of past persecution.

              To establish a well-founded fear of future persecution, a petitioner must



                                              7
demonstrate: (1) a subjective fear of persecution through credible testimony, and (2) “ a

pattern or practice . . . of persecution of a group of persons similarly situation to the

applicant on account of race, religion, nationality, membership in a particular social

group, or political opinion . . . .” 8 C.F.R. § 208.13(b)(1)(iii)(A). In the present case, the

BIA focused on the second-prong of the well-founded fear test to find that the evidence

submitted by Timbuleng does not reflect a pattern or practice of persecution.

              “[T]o constitute a ‘pattern or practice,’ the persecution of the group must be

‘systemic, pervasive, or organized.’” Lie, 396 F.3d at 537 (quoting Ngure v. Ashcroft,

367 F.3d 975, 991 (8th Cir. 2004)). “[V]iolence or other harm perpetrated by civilians . .

. does not constitute persecution unless such acts are ‘committed by the government or

forces the government is either unable or unwilling to control.’” Lie, 296 F.3d at 537

(quoting Abddulrahman v. Ashcroft, 339 F.3d 587, 592 (3d Cir. 2003)).

              In the present case, the BIA found that the alleged harm was “too random

and sporadic to . . . rise[] to the level of persecution or torture.” (App. 2.) In Lie, this

Court, specifically considering whether the recent violence by Muslim extremists against

Christians in Indonesia constituted a pattern or practice of persecution, held that this

violence “has been primarily wrought by fellow citizens and not the result of

governmental action or acquiescence” and therefore is not a pattern or practice of

persecution. Lie, 396 F.3d at 537. Timbuleng has not demonstrated that the

circumstances in Indonesia have changed since the decision in Lie to include government



                                               8
action or acquiescence. Therefore, the BIA did not err in finding that there is not a

pattern or practice of persecution of Christians in Indonesia at this time.

              We will deny the petition for review.




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