                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-21-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3854




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-3854
                                       ___________

                               FARIDA FANTY KESUMA,
                                                Petitioner

                                             v.

                ATTORNEY GENERAL OF THE UNITED STATES;
             SECRETARY DEPARTMENT OF HOMELAND SECURITY,
                                                        Respondents
                   ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                 BIA No. A95-838-101
              (U.S. Immigration Judge: Honorable Charles M. Honeyman)
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 30, 2008
     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

                               (Filed November 21, 2008)
                                      ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM.

       Petitioner Farida Fanty Kesuma, an ethnic Chinese Catholic native and citizen of

Indonesia, filed a timely petition for review of a final order of removal of the Board of

Immigration Appeals (BIA). We will grant the petition.
       We assume the parties’ familiarity with the underlying facts in this case and, thus,

we summarize only the pertinent procedural history. Kesuma entered the United States in

September 2001, on a tourist visa with authorization to remain in the United States until

March 2002. On October 15, 2002, the Department of Homeland Security (“DHS”)

issued a Notice to Appear charging Kesuma with being subject to removal under the

Immigration and Nationality Act § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for

overstaying her visa. Kesuma admitted the charges and conceded removability. She

applied for asylum, withholding of removal, and for relief under the United Nations

Convention Against Torture (“CAT”). On January 15, 2004, the Immigration Judge

(“IJ”) granted asylum to Kesuma, finding that, as a Chinese Catholic, Kesuma faced a

pattern or practice of persecution in Indonesia. The BIA remanded for further

proceedings in light of Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005).

       On remand, the parties stipulated that Kesuma’s experiences in Indonesia did not

amount to past persecution under the law. The IJ denied relief based on a review of the

record and of the 2005 State Department Reports on Human Rights Practices and on

Religious Freedom in Indonesia. The IJ concluded that Kesuma failed to demonstrate a

well-founded fear of future persecution on account of a pattern or practice of persecution

against ethnic Chinese Christians in Indonesia. The BIA dismissed the appeal. Kesuma

filed a timely petition for review.




                                             2
       We have jurisdiction to review final orders of the BIA under section 242(a)(1) of

the INA, 8 U.S.C. § 1252(a)(1). The threshold issue on appeal is whether the BIA

applied the correct legal standard when it reviewed the IJ’s denial of Kesuma’s asylum

application. Whether the BIA applied the appropriate standard of review is a question of

law, and is therefore subject to de novo review. See Wang v. Ashcroft, 368 F.3d 347, 349

(3d Cir. 2004).

       At issue in the BIA’s opinion is the following language:

       We also agree with the Immigration Judge that the respondent [Kesuma] failed
       to meet her burden to establish that it is more likely than not that she would be
       persecuted on account of a protected ground if returned to Indonesia. The
       respondent failed to show either that she will be individually targeted for
       persecution or that there is a pattern or practice of persecution of ethnic
       Chinese in Indonesia. See C.F.R. § 1208.16(B)(2).

       Kesuma argues that there is no indication in the BIA’s opinion that it assessed the

case under the well-founded fear standard in asylum cases. She asserts that the BIA

erroneously raised the burden of proof of asylum to the “more likely than not” standard

that is applied in withholding of removal cases. The government denies that the BIA

applied the wrong standard. But it acknowledges that the BIA’s citation to 8 C.F.R. §

1208.16(b)(2), addressing the standard in withholding of removal standard cases, is

erroneous. See Appellee’s Brief at 15. The government contends, however, that even if

the BIA erred, the error was harmless. It suggests that the BIA simply should have placed

the citation to 8 C.F.R. § 1208.16(b)(2) immediately after the first sentence in the

paragraph.

                                              3
        The “more likely than not” burden of proof for establishing eligibility for

withholding of removal is more stringent than the burden required for establishing

asylum. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). “An [asylum]

applicant must show that he has a subjective fear of persecution that is supported by

objective evidence that persecution is a reasonable possibility.” Id. at 175. The “clear

probability” standard for withholding of removal is a higher standard that does not have a

subjective component. We cannot ignore the BIA’s express language applying the clear

probability standard for withholding of removal to Kesuma’s asylum claim. Contrary to

the government’s contention, there is nothing in the opinion indicating that the citation to

§ 1208.16(b)(2) was mistaken.1 Most important, there is no language in the opinion

indicating that the BIA analyzed Kesuma’s case under the proper well-founded fear of

persecution standard for asylum cases. We have no choice but to remand the matter for

the BIA’s analysis of Kesuma’s asylum claim under the appropriate standard. See

Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003) (“When deficiencies in the BIA’s

decision make it impossible for us to meaningfully review its decision, we must vacate

that decision and remand so that the BIA can further explain its reasoning”).

        On another note, we expect that the BIA will clarify on remand whether the expert

affidavits (and CVs) of Dr. Jeffrey Winters and of Ms. Jana Mason are properly before it.

In her brief to the BIA, Kesuma requested permission to supplement the record with the


   1
       The standard in asylum cases is set forth in 8 C.F.R. § 1208.13.

                                              4
Winters affidavit, which the BIA denied. A.R. at 7. Kesuma now asserts that she had

submitted the Winters and Mason affidavits to the Immigration Court in her motion for

reconsideration, and that they are therefore part of the administrative record on appeal.

The administrative record indicates that Kesuma filed a motion to reconsider (with the

affidavits and CVs) in the Immigration Court on April 11, 2006, three days before she

filed a notice of appeal. A.R. at 60-306. The government filed its response after Kesuma

appealed. A.R. at 48-50. It appears that the IJ did not rule on the motion for

reconsideration.

       For the foregoing reasons, we will grant the petition for review, vacate the BIA’s

Order and remand the matter to the BIA for further proceedings consistent with this

opinion.




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