                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 05-14131
                                                               June 22, 2006
                          Non-Argument Calendar               THOMAS K. KAHN
                        ________________________                  CLERK

                   BIA Nos. A95-551-271 & A95-551-272


IMELDA MARIA EFIE SUHARTI,
NANA SURYADI,
NICKHOLAS LOUISE,

                                                         Petitioners-Appellants,

                                   versus

U.S. ATTORNEY GENERAL,

                                                          Respondent-Appellee.

                        ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                        _________________________

                              (June 22, 2006)

Before ANDERSON, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

     Lead petitioner Imelda Maria Efie Suharti, her husband Nana Suryadi, and
their minor son, all natives and citizens of Indonesia, petition for review of the

final order of the Board of Immigration Appeals (“BIA”), which affirmed the

immigration judge’s (“IJ”) denial of asylum and withholding of removal under the

Immigration and Nationality Act (“INA”) and relief under Article 3 of the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (“CAT”). On appeal, Suharti argues that the BIA erred

by adopting and affirming the IJ’s denial of asylum based on Suharti’s failure to

demonstrate past persecution or a well-founded fear of future persecution, on a

country-wide basis, based on religion (Christianity) or ethnicity (Chinese).1 More

specifically, Suharti contends that the BIA’s review violated due process because

the administrative record did not (and still does not) contain Suryadi’s testimony,

on which the IJ relied in finding that Suharti was not credible.                  After careful

review, we dismiss the petition in part and deny the petition in part.

       We “review only the [BIA’s] decision, except to the extent that it expressly

adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).



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        We are unpersuaded by Suharti’s additional argument that, as a general matter, the
BIA’s summary affirmance of an IJ’s decision violates due process. See Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1289 (11th Cir. 2003) (noting that “no entitlement to a full opinion by the
BIA exists,” and the fact that “a one-sentence order was entered is no evidence that the BIA
member did not review the facts” of the case (quotation omitted)).

        Because we find that Suharti’s has not established a case for asylum, we do not consider
whether she satisfied the higher standard for withholding of removal under the INA or CAT
relief. See Forgue v. Att’y Gen., 401 F.3d 1282, 1288 n. 4 (11th Cir. 2005).
                                                 2
Here, the BIA stated that it adopted the IJ’s decision “insofar as he [the IJ] found

that the respondents failed their burdens of proof for asylum and withholding of

removal under the [INA] and for protection under the [CAT].” If the BIA adopts

the IJ’s opinion, then that decision is reviewed as well. Najjar, 257 F.3d at 1284.

To the extent that the BIA’s decision was based on a legal determination, our

review is de novo. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th

Cir. 2004).

      We review an IJ’s factual findings, such as credibility determinations, under

the substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286

(11th Cir. 2005) (citations omitted). Under this “highly deferential” test, we will

“affirm the [IJ’s] decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Id. (citation omitted).

“The trier of fact must determine credibility, and this court may not substitute its

judgment for that of the [IJ] with respect to credibility findings.” D-Muhumed,

388 F.3d at 818.

      “Once an adverse credibility finding is made, the burden is on the applicant

alien to show that the IJ’s credibility decision was not supported by ‘specific,

cogent reasons’ or was not based on substantial evidence.” Forgue, 401 F.3d at

1287 (citations omitted) (emphasis added).       Although we have not directly

addressed the issue, both the Third and the Ninth Circuits have held that an adverse
                                         3
credibility finding must go to the “heart of the asylum claim,” and not be based on

minor discrepancies, inconsistencies, and omissions.    See Gao v. Ashcroft, 299

F.3d 266, 272 (3d Cir. 2002); Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999).

Moreover, an adverse credibility determination does not alleviate the IJ’s duty to

consider all of an asylum applicant’s evidence. Forgue, 401 F.3d at 1287.

      An alien who arrives in or is present in the United States may apply for

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has

discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”

See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is

unwilling to return to his home country or to avail himself of that country’s

protection “because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion .” 8 U.S.C. § 1101(a)(42)(A).

      The asylum applicant carries the burden of proving statutory “refugee”

status. See Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant satisfies

this burden by showing, with specific and credible evidence: (1) past persecution

on account of a statutorily listed factor, or (2) a “well-founded fear” of future

persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). A

showing of past persecution creates a presumption of a “well-founded fear” and

shifts the burden to the government to show by a preponderance of the evidence
                                         4
(1) a fundamental change in circumstance such that Suharti no longer has a

well-founded fear of persecution, or (2) that Suharti could avoid future persecution

by relocating to another part of Indonesia and it would be reasonable to expect her

to do so. See 8 C.F.R. §§ 208.13(b)(1)(i)(A), (B); 208.16(b)(2), (3). If she cannot

show past persecution, then a petitioner must demonstrate a well-founded fear of

future persecution that is both subjectively genuine and objectively reasonable.

Najjar, 257 F.3d at 1289.     The subjective component can be proved “by the

applicant’s credible testimony that he or she genuinely fears persecution,” while

the objective component “can be fulfilled either by establishing past persecution or

that he or she has a good reason to fear future persecution.”        Id. (quotation

omitted).

      On June 27, 2003, after an evidentiary hearing on Suharti’s petition, the IJ

summarized the testimony and evidence he considered as follows:

              The evidence in this case consisted of five exhibits and the
      testimony of the respondent and her husband. In essence, they both
      testified that they were born and raised in Indonesia; that they were
      married and they have a son. She testified that they were married in a
      family ceremony December 6, 2000, and reception [was held] at her
      house in Surabaja that was officiated by her uncle and attended by
      about 300 people. And then on November 9 of 2001, they had a
      church ceremony at a church in Jakarta, and then they received their
      marriage certificate in January 2002. And this marriage certificate
      indicates that the church ceremony occurred November 9, 2001.

           Her husband testified that they were married in a church on
      November 11, 2000 in Jakarta, and that they had a civil ceremony at
                                         5
an office in Surabaja on December 6, 2001, which was attended by
approximately nine or ten people, and there were no other ceremonies.
Although, on cross-examination, he did indicate that there was a
reception held at his wife’s home in Surabaja, and that occurred
between the date they were married in church in November of 2000
and when they were married in a civil ceremony in December of 2001.

       He testified that his shop burned during the rioting of May 15th
1998, when university students were demonstrating in the street,
requesting that the president of Indonesia step down. He indicated
that there were some who took the opportunity to start burning stores,
and that his store was not specifically singled out but was one of many
stores burned on that occasion.

       She testified concerning that incident as well. She also testified
that when she was 16 and attending school, which would have been
about 1989, that one day on her way home from school, she was
attacked by two men and that one of them burned her face with a
cigarette and that they touched her breast, and that she ran back to the
school where her father was called. And he reported this to the police,
but they were unable to do anything.

       In addition, she indicated that [on] July 7, 2001, while she was
out shopping, two individuals, one in front of her and one behind her,
tried to snatch her purse. When she would not let go, the individual
said to her let go, let go, and then pushed her down. And as she fell,
he took her purse. And the fall apparently caused her water to break
and she went into premature labor and had a cesarean section the next
day.

      Additionally, she indicated that in December of 2001, while her
mother was outside of their house, two individuals on a motorcycle
drove by, grabbed her mother’s necklace, which broke [and] fell to the
ground. So one of the individuals got off the motorcycle and grabbed
the necklace off the ground, and while he was off the motorcycle, also
grabbed her mother’s purse.




                                   6
             Her claim for asylum is based upon past persecution, fear of
      continuing persecution on account of their religion being
      Christian[ity] and their ethnicity being Chinese in Indonesia.

      After recounting the foregoing evidence, the IJ denied asylum, enumerating

two reasons for his decision. First, the IJ made an adverse credibility finding,

noting that he had taken into account not only the substance of Suharti’s and

Suryadi’s testimony, but also the demeanor of the petitioners, and the “rationality,

internal consistency and inherent persuasiveness of their testimony.”          The IJ

highlighted that, other than the more general background information about

conditions in Indonesia, there had been no corroborating evidence presented as to

the specific incidents detailed during Suharti’s testimony. And it is clear that the IJ

was troubled by what he described as “significant discrepancies” between the

testimony of the two petitioners concerning their wedding. The IJ observed that

“[o]ne of the most significant events in the life of a person is when they get

married, and it is something one remembers.”

      Second, after the IJ made the foregoing adverse credibility determination,

which formed the primary reason for denying the petition, the IJ also found that

even if he accepted what Suharti said as true, she still had not met her burden to

establish past persecution because the incidents she described were unrelated to a

statutorily protected ground.    Again, these incidents were: (1) in 1989, when

Suharti was 16, she was attacked by two men who burned her face with a cigarette
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and touched her breast; (2) on July 7, 2001, while she was out shopping, her purse

was snatched and, as a result of the incident, she went into premature labor; and (3)

in December of 2001, two individuals on a motorcycle drove by Suharti’s house

and grabbed her mother’s necklace off of her neck and stole her mother’s purse.

The IJ characterized these incidents as “random crimes of opportunity” and

deemed them insufficient to show past persecution connected to a statutorily

protected basis.

      Moreover, the IJ found that Suharti had not established a well-founded fear

of future persecution. This determination, like the findings on past persecution,

was based both on an adverse credibility finding and a finding that Suharti had not

met her burden to show that a reasonable person in her circumstances would fear

future persecution based on a statutorily protected ground.

      Suharti appealed the IJ’s decision to the BIA, arguing that the IJ erred by

making an adverse credibility finding because her testimony was not inconsistent

with Suryadi’s testimony. She contended that in Indonesia, wedding dates and

anniversaries are not celebrated in the same way as they are in the United States,

and therefore, it was reasonable for she and Suryadi not to remember the exact

dates of their wedding ceremonies and the related celebrations. The BIA dismissed

her appeal, stating that it adopted and affirmed the IJ’s decision “insofar as he

found that the respondents failed to meet their burdens of proof for asylum and
                                          8
withholding of removal under the [INA] and for protection under the [CAT].”

Notably, at no point in the BIA proceedings did Suharti raise the primary claim she

makes here: that without a transcript of Suryadi’s testimony, the BIA’s review of

the IJ’s decision violated due process.

      It is undisputed that the record does not include a transcript of Suryadi’s

testimony. Suharti argues that the BIA erred by affirming the denial of asylum

based on the adverse credibility finding because the administrative record is

missing a transcript which was crucial to the IJ’s adverse credibility determination.

She argues that we must remand this matter for further proceedings. We disagree.

      We are “obligated to inquire into subject-matter jurisdiction sua sponte

whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.

2004) (quotation omitted).    We review our subject matter jurisdiction de novo.

Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004). In

immigration cases, we may review a final order of removal only if “the alien has

exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. §

1252(d)(1). It is now well-settled that § 1252(d)(1)’s exhaustion requirement is

jurisdictional, so we lack jurisdiction to consider claims that could have been, but

were not, asserted in the BIA. See Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d

1304, 1317 n.13 (11th Cir. 2001) (holding that because of § 1251(d)(1) we lack



                                          9
jurisdiction to review a claim the petitioner does not raise in his appeal to the BIA);

Galindo-Del Valle v. Att’y Gen., 213 F.3d 594, 599 (11th Cir. 2000) (same).

      Constitutional challenges and some due process claims, however, do not

require exhaustion because the BIA does not have the authority to adjudicate those

claims. Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir. 2003). However, where

the BIA can provide a remedy to the constitutional claim, “the exhaustion

requirement applies with full force.”      Id. (holding that an alien should have

exhausted his due process claim that the IJ’s and BIA’s application of an

immigration statute violated the constitution, because “[i]t was within the BIA’s

authority to reconsider and change its decision”).

      Here, Suharti argues that the BIA’s decision violated due process because

the administrative record did not contain Suryadi’s testimony, and therefore, the

BIA could not fully assess the IJ’s adverse credibility determination. Suharti failed

to raise this claim in the BIA, and thereby “deprived [the BIA] of the opportunity

to discover and correct [its] own error [ ].”        Id. (internal quotation marks and

citation omitted). “Preventing petitioners from doing that is what the exhaustion

requirement is all about.” Id. at 1325-26 (citing Rashtabadi v. INS, 23 F.3d 1562,

1567 (9th Cir. 1994) (“[A] petitioner cannot obtain review of procedural errors in

the administrative process that were not raised before the agency merely by

alleging that every such error violates due process.”) (internal marks omitted)).
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Because Suharti did not raise this claim before the BIA, we lack jurisdiction to

consider her argument concerning the missing transcript, and accordingly, dismiss

the petition as to that claim.

       The fact of the missing transcript does not preclude our review of the asylum

decision because, separate and apart from the adverse credibility determination, the

IJ provided an alternative reason for denying asylum, which we find is supported

by substantial evidence.         As for past persecution on account of a statutorily

protected ground, in addition to finding Suharti not credible, the IJ also found that,

even if he accepted all of the testimony at the hearing as true, Suharti still failed to

show that any persecution she experienced was premised upon a protected ground.

Persecution is “an extreme concept, requiring more than a few isolated incidents of

verbal harassment or intimidation,” and “mere harassment does not amount to

persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)

(citation and internal quotation marks omitted).

       The IJ concluded that Suharti described isolated incidents of verbal

intimidation and acts of random violence. In 1989, when she was 16, two men

approached her while she was walking home from school. They touched her breast

and burned her face with a cigarette, but then left her alone when she ran back to

her school to report the incident. In July 2002, she was robbed, and during the

robbery she was pushed and her water broke. From our review of the transcript of
                                            11
her testimony, there is no indication that anything relating to Suharti’s religion or

ethnicity was said or transpired during this attack. Finally, when her mother was

robbed of her necklace and purse while standing in front of Suharti’s house, again,

we can find no testimony suggesting that this crime was related to, or caused by,

Suharti’s religion or ethnicity.   As for the burning and looting of her store in

Jakarta -- during this incident, Suharti was not in the country -- Suharti’s

explanation on her asylum application and testimony during the evidentiary

hearing did not unequivocally indicate that the incident had to do with her ethnicity

or religion, although she briefly mentioned she had heard that the looters got

more upset when they saw a crucifix in the window of the store. That incident, by

itself, does not establish past persecution sufficient to warrant granting her asylum.

      We also note Suharti testified that, prior to coming to the United States, she

left Indonesia and went to Taiwan on numerous occasions. But each time she left,

despite the fact that the incidents she alleged in support of her claim of persecution

preceded her departure and thus, according to her argument in support of asylum,

constituted past persecution, she returned to Indonesia. On this record, there was

sufficient evidence to support the IJ’s past-persecution findings and conclusion that

the harassing incidents Suharti described, with virtually no connection to a

statutorily protected basis, were not sufficient to constitute past persecution.

      As for future persecution, because Suharti failed to meet her burden of
                                         12
establishing past persecution, the burden of proof did not shift to the government.

See generally 8 C.F.R. § 208.13(b)(1), (2), (3)(i). Thus, the burden remained with

Suharti to show a well-founded fear of future persecution. See id. Based on our

review, we have found nothing in the record that compels us to find that a

reasonable factfinder would have to conclude that the requisite fear of future

persecution, which must be based on one of the five statutorily enumerated

grounds, exists.

      Because we lack jurisdiction over Suharti’s due process claim concerning

the transcript of Suryadi’s testimony, and substantial evidence supports the denial

of asylum, we dismiss in part and deny in part the petition for review.

      PETITION DISMISSED IN PART AND DENIED IN PART.




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