                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5085




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                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                 Case No: 05-5085

                              BUDIONO ANDOKO,
                                      Petitioner

                                           v.

                          ATTORNEY GENERAL USA,
                                    Respondent


                 On Petition for Review of a Final Decision of the
                          Board of Immigration Appeals
                              BIA No. A96-204-335
                   Immigration Judge: Charles M. Honeyman


                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               February 12, 2007

                   Before: SMITH and FISHER, Circuit Judges,
                         and DIAMOND, District Judge*

                            (FILED: February 15, 2007)


                                     OPINION




      *
       The Honorable Gustave Diamond, Senior District Judge for the Western District
of Pennsylvania, sitting by designation.

                                          1
SMITH, Circuit Judge.

      Budiono Andoko, a citizen and native of Indonesia, petitions for review of

the decision by the Board of Immigration Appeals (BIA) dismissing his appeal of

the Immigration Judge’s denial of his application for withholding of removal, and

relief under the Convention Against Torture (CAT).1 For the reasons set forth

below, we will deny the petition for review.

      Andoko entered the United States in November 2000 as a business visitor

and overstayed his visa. In July 2003, he was served with a notice to appear,

charging that he was removable for staying longer than permitted in violation of 8

U.S.C. § 1237(a)(1)(B). In response, Andoko filed an application for asylum,

withholding of removal, and relief under the CAT. He alleged that he had suffered

persecution in his native Indonesia because of his Chinese ancestry and his

Christian faith. In an affidavit attached to his application, Andoko related that he

had been persecuted since childhood because of his ethnicity. He described

generally how Chinese Indonesians were discriminated against and he cited the


      1
        The IJ found that Andoko’s asylum application was time-barred under 8 U.S.C. §
1158(a)(2)(B), and that that he failed to demonstrate changed circumstances warranting
an exception to the one year time period, 8 U.S.C. § 1158(a)(2)(C). Section 1158(a)(3)
precludes judicial review of any determination made regarding the timeliness of an
asylum application. Andoko wisely does not seek review of the IJ’s determination that
his asylum application was untimely. See Sukwanputra v. Gonzales, 434 F.3d 627, 634
(3d Cir. 2006).

                                          2
1998 riots, which destroyed his brother’s store. Andoko also described how in

May of 1999 he was assaulted while on his motorcycle by several persons who

were drunk and who used anti-Chinese epithets. He sustained a broken leg as a

result of the incident and was hospitalized.

      During the hearing before the Immigration Judge (IJ), Andoko testified that

he decided to leave Indonesia in November 2000 because he had been traumatized

by the May 1999 assault. He explained that he “wanted to live in America”

because it was “safe and also comfortable.” When asked what would happen if he

were repatriated to Indonesia, Andoko voiced his desire to stay in America as it

would not be safe to return to Indonesia.

      The IJ found that Andoko’s asylum application was untimely. The IJ went

on to deny Andoko’s request for asylum on the merits, ruling that the assault he

described did not rise to persecution. In addition, the IJ explained that there were

no facts to suggest that Andoko would be persecuted in the future, and that the

evidence did not demonstrate a pattern or practice of persecution against ethnic

Chinese Christians. Because the burden to establish a right to withholding of

removal is more stringent than the burden applicable to asylum, the IJ also denied

Andoko’s withholding of removal claim. Inasmuch as the evidence failed to

demonstrate that it was more likely than not that Andoko would be tortured if he


                                            3
were repatriated to Indonesia, the IJ also denied Andoko’s request for relief under

the CAT.

      Andoko appealed the IJ’s decision to the BIA. The BIA adopted and

affirmed the decision of the IJ, specifically noting that it agreed that Andoko’s

asylum application was time-barred and that Andoko had failed to meet his burden

of proof with respect to his requests for both withholding of removal and relief

under the CAT.

      This timely petition for review followed.2 Andoko asserts that the IJ erred

by finding that he did not meet his burden with respect to his claims for

withholding of removal and for relief under the CAT.

      Because the BIA adopted the IJ’s decision and discussed certain aspects of

it, we review the decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d

215, 223 (3d Cir. 2004). The Immigration and Nationality Act provides that “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). As

we observed in Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc), this

provision requires that we review to determine if the findings are supported by


      2
        The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2(b). The BIA exercised
appellate jurisdiction under 8 C.F.R. § 1003.1(b). We possess jurisdiction under 8
U.S.C. § 1252(a).
                                           4
substantial evidence.

      Withholding of removal is required “if the Attorney General decides that the

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

race, religion, nationality, membership in a social group or political opinion.” 8

U.S.C. § 1231(b)(3)(A). To obtain relief under this provision, an alien must

establish by a “clear probability” that his life or freedom would be threatened in the

proposed country of deportation. INS v. Stevic, 467 U.S. 407, 413 (1984). This

“requires that an application [for withholding of deportation] be supported by

evidence establishing that it is more likely than not that the alien would be subject

to persecution on one of the specified grounds.” Id. at 429. This standard is more

demanding than the standard required to show a well-founded fear of persecution

to obtain a discretionary grant of asylum. Balasubramanrim v. INS, 143 F.3d 157,

161 n.8 (3d Cir. 1998) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31

(1987)); Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997).

      After conducting a thorough review of the record, we conclude that there is

substantial evidence to support the IJ’s findings that Andoko was not persecuted.

The assault he sustained in May of 1999, though no doubt painful, did not

constitute a threat to his life or freedom. See Fatin v. INS, 12 F.3d 1233, 1239 (3d

Cir. 1993). Nor do we find evidence in this record which would compel the


                                          5
conclusion that there was a pattern or practice in Indonesia of persecuting ethnic

Chinese Christians. Accordingly, we will not disturb the BIA’s denial of

Andoko’s request for withholding of removal.

      Andoko also presses his application for relief under the CAT. We are

mindful of the definition of torture in the regulations, see 8 C.F.R. § 208.18(a)(1),

and the fact that the regulations instruct that “[t]orture is an extreme form of cruel

and inhuman treatment. . . .” 8 C.F.R. § 208.16(c)(3)(1). We find nothing in this

record that compels the conclusion that Andoko would likely be tortured if he were

repatriated to Indonesia.

      We will deny Andoko’s petition for review.




                                           6
