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


5-24-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1685




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                                                               NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                 Case No: 05-1685

                                HARY AGUSALIM,

                                          Petitioner


                                          v.

                        ALBERTO R. GONZALES, ATTORNEY
                        GENERAL OF THE UNITED STATES,

                                          Respondent


                     On Petition for Review of a Final Decision
                        of the Board of Immigration Appeals
                                BIA No. A95 460 325
                   Immigration Judge: Honorable Donald V. Ferlise


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   May 12, 2006

               Before: BARRY, SMITH, and TASHIMA,*Circuit Judges

                                (Filed: May 24, 2005)


                             OPINION OF THE COURT


SMITH, Circuit Judge.



      *
        The Honorable A. Wallace Tashima, Senior Judge for the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
       Hary Agusalim, a native and citizen of Indonesia, seeks review of the Board of

Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s (“IJ”) denial of

his application for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). For the reasons set forth below, we will dismiss in part and

deny in part the petition for review.1

                                             I.

       Agusalim entered the United States on October 21, 1999, on a six-month non-

immigrant visa. Although his visa expired on April 20, 2000, Agusalim remained in the

United States. Nearly two years later, on April 18, 2002, he filed an application for

asylum. In his application, he claimed that he feared that he would be persecuted based

on his Chinese ethnicity if he were to be returned to Indonesia. On June 4, 2002, the

Immigration and Naturalization Service (“INS”) served Agusalim with a Notice to

Appear, alleging that he was removable pursuant to 8 U.S.C. § 1227(a)(1)(B). He

conceded removability at a preliminary hearing on July 12, 2002.

       At his removal hearing on August 20, 2003, Agusalim testified that he had

experienced problems in Indonesia as a result of his Chinese ethnicity. For example, he



       1
         The IJ had jurisdiction under 8 C.F.R. § 208.2(b) and the BIA exercised
appellate jurisdiction over the IJ’s decision under 8 C.F.R. § 1003.1(b)(3). As discussed
below, we lack jurisdiction to review Agusalim’s asylum claim, see 8 U.S.C. §
1158(a)(3), but we retain the authority to review his remaining claims pursuant to 8
U.S.C. § 1252(a)(1). To the extent that the BIA has adopted and affirmed the findings of
the IJ, we treat the IJ’s opinion as that of the Board. See Voci v. Gonzales, 409 F.3d 607,
612 (3d Cir. 2005) (citations omitted).

                                             2
explained that when he was eleven years old, several Indonesian high school students

duped him into buying them cigarettes, and while he was in the store, stole his bicycle.

He also testified that although he desired to become a doctor, he chose not to attend

Airlangga University, the only good local medical school, because “[m]ost of the students

there were native Indonesian, so I would be the minority there.” Agusalim ultimately

decided to study engineering and attended Petra University from 1996 to 1998. In 1999,

with a presidential election approaching, “everybody thought that there would be some

kind of trouble” in Indonesia, and Agusalim decided to travel to the United States. Both

his parents and his three siblings remain in Indonesia. When asked why he did not file his

application within one year of his arrival in the United States, Agusalim stated that he

“could not make up [his] mind whether [he] wanted to stay here or [he] wanted to return

to [his] country.”

       Although the IJ found Agusalim to be a credible witness, he nevertheless denied

all of his claims for relief. The IJ concluded that Agusalim’s asylum claim was time-

barred, because his application was not filed within one year of his arrival as required by

8 U.S.C. § 1158(a)(2)(B) and he failed to offer an explanation constituting extraordinary

circumstances sufficient to excuse the delay. The IJ further held that Agusalim was not

entitled to withholding of removal or CAT protection because he failed to “submit[] a

scintilla of evidence that he has ever been persecuted for his race, religion, nationality,

membership in a particular social group, or political opinion,” to show a “clear

probability” of persecution if he is returned to Indonesia, and to prove that “he will be

                                              3
tortured if he returns to his country.” The IJ also denied Agusalim’s request for voluntary

departure because he concluded that Agusalim did not intend to leave the United States.

       Agusalim appealed the IJ’s order of removal to the BIA on September 5, 2003.

The BIA affirmed the IJ’s decision in a one-paragraph per curiam opinion and dismissed

Agusalim’s appeal, concluding that Agusalim’s asylum application was time-barred and

upholding the IJ’s findings and conclusions. On March 4, 2005, Agusalim filed this

petition for review.

                                              II.

       Because the BIA concluded that Agusalim’s asylum application was untimely, we

do not have jurisdiction to consider his asylum claim. See 8 U.S.C. § 1158(a)(3);

Tarawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003); Sukwanputra v. Gonzales, 434

F.3d 627, 633 (3d Cir. 2006). We also may not consider Agusalim’s CAT claim because

he failed to exhaust his administrative remedies by raising the issue before the BIA. See

8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if the alien has

exhausted all administrative remedies available to the alien as of right . . . .”). Even if

that were not so, he has waived the argument on appeal by neglecting to even mention the

claim in his opening brief to this Court. See Kopec v. Tate, 361 F.3d 772, 775 n.5 (3d Cir.

2004) (“An issue is waived unless a party raises it in its opening brief . . . .”) (quoting

Laborers Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)).

       Although the lack of timeliness does not preclude our review of a claim for

withholding of removal, see Tarawally, 338 F.3d at 186, we will nevertheless deny

                                               4
Agusalim’s petition for review of this claim.2 In order to establish eligibility for


       2
         The Government argues that Agusalim also waived his withholding of removal
claim by failing to raise it in his opening brief. Although “passing reference to an issue”
is generally regarded as insufficient to raise an argument on appeal, see Kopec, 361 F.3d
at 775 n.5 (quoting Laborers Int’l Union, 26 F.3d at 398 ), we will address the merits of
the withholding of removal claim because it was at least arguably raised.

        Although we ultimately conclude that Agusalim’s claim lacks merit, we take this
opportunity to note that his counsel did little, if anything, to advance his case.
Agusalim’s attorney has been repeatedly criticized by the Clerk’s Office and this Court
regarding the quality of her work and admonished to comply with Court rules. See, e.g.,
Chen v. Gonzales, No. 04-4685, 164 Fed. Appx. 264, 276 n.2 (3d Cir. Jan. 31, 2006)
(“We note that petitioners’ brief does not contain a statement of facts as required by Fed.
R. App. P. 28(a)(7) . . . . Petitioner’s counsel is admonished to note that, in the future,
briefs submitted to this Court that do not comply with the requirements of the
aforementioned rules may be stricken and the appeal dismissed . . . .”); Oktavia v.
Gonzales, No. 03-4536, 128 Fed. Appx. 849, 852 (3d Cir. March 17, 2005) (“Oktavia’s
brief merely cites legal propositions . . . .”). In fact, from March 30, 2004 to April 11,
2005, the Clerk’s Office issued seven orders indicating that Agusalim’s counsel failed to
comply with Court procedures, advising her to be mindful of relevant deadlines and rules,
and notifying her that future non-compliance could result in “appropriate action.”

       Perhaps even more notably, in Sunarjo v. Gonzales, No. 04-2660,130 Fed. Appx.
621, 625 n.6 (3d Cir. May 25, 2005), the Court identified a disturbing pattern in the briefs
submitted by counsel. In that case, the Court wrote:

       We note that Sunarjo’s attorney also represented Xiu Hua Zheng in a
       separate immigration matter . . . . It appears that Petitioner’s attorney
       submitted the identical 5-page brief in both cases, with the exception of
       changing the petitioners’ names. The two cases had dissimilar fact patterns,
       and neither brief properly addresses the issues in the individual cases.
       Notwithstanding these deficiencies, we were able to determine that this case
       lacked merit. Nevertheless, we hope that such a practice will not be
       repeated by counsel in the future.

Despite this admonition, which was issued less than one year ago, we note that counsel
has persisted in filing substantially identical briefs in numerous cases. Frequently, the
briefs do not respond to the actual legal questions at stake.


                                              5
withholding of removal under the Immigration and Nationality Act, Agusalim would have

to demonstrate a “clear probability” that his “life or freedom would be threatened in that

country because of [his] race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. §1231(b)(3)(A). The IJ determined that Agusalim

failed to make such a showing, and we conclude that the IJ’s determination is supported

by substantial evidence. See Lusingo v. Gonzales, 420 F.3d 193, 199 (3d Cir. 2005)

(explaining that factual findings related to petitioner’s eligibility for asylum are evaluated

under substantial evidence standard). A stolen bicycle and a missed opportunity to go to

medical school do not a claim of persecution make. Accordingly, we will dismiss in part

and deny in part Agusalim’s petition for review.




        In this case, it appears that petitioner’s attorney has once again used a boilerplate
brief that fails to meaningfully recite the facts of the case or analyze those facts in light of
the legal standards. Her entire brief, from Statement of Jurisdiction to Certification of
Good Standing, is six pages long. Far from heeding our prior warnings, petitioner’s
counsel exhibits a continuing disregard for the interests of her clients, rules of appellate
procedure, and resources of this Court. Accordingly, we will refer her to the Third
Circuit Court of Appeals’ Disciplinary Committee pursuant to Federal Rule of Appellate
Procedure 46(c).
