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


6-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2101




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Soekarjan v. Atty Gen USA" (2008). 2008 Decisions. Paper 1015.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1015


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                         IMG-098
                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                          No. 07-2101
                                          ___________

                                    FNU SOEKARJAN,
                                           Petitioner

                                              v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                           _____________________

                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                               (Agency No. A96-203-398)
                  Immigration Judge: Honorable Charles M. Honeyman
                                _____________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      June 4, 2008

      Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                                   (Filed June 17, 2008)
                                       ___________

                                OPINION OF THE COURT
                                     ___________

PER CURIAM

       Soekarjan petitions for review of an order of the Board of Immigration Appeals

(“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons

that follow, we will deny his petition.
       Soekarjan is a native and citizen of Indonesia and identifies himself as an ethnic

Manado and a member of the Christian faith. He entered the United States as a non-

immigrant visitor on March 10, 2001 and overstayed his visa. He was issued a Notice to

Appear on April 15, 2003, and on October 8, 2003, when appearing before the IJ, applied

for asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”).

       The IJ denied all relief save Soekarjan’s request for voluntary departure, holding

that his asylum application was time-barred and that he could not satisfy the standard for

withholding of removal or CAT relief. The BIA affirmed the IJ’s decision and dismissed

the appeal, agreeing that Soekarjan had not demonstrated the existence of extraordinary

circumstances sufficient to excuse his delay in filing for asylum, that he had failed to

establish past persecution or a clear probability of future persecution or that there was a

pattern or practice of persecution directed against Christians in Indonesia, and that he

failed to show that he would more likely than not be tortured in Indonesia. Through

counsel, Soekarjan filed a petition for review. The Government opposes the petition.

       We have jurisdiction over this petition for review under 8 U.S.C. § 1252. We

review the BIA’s factual findings for “substantial evidence.” See Abdille v. Ashcroft,

242 F.3d 477, 483-84 (3d Cir. 2001). Under this standard, we will uphold these findings

unless the evidence not only supports a contrary conclusion, but compels it. See id.

       While we generally lack jurisdiction to review the determination that an asylum

application was not filed within the one-year limitations period and that such period was

                                              2
not tolled by extraordinary circumstances, see Tarrawally v. Ashcroft, 338 F.3d 180, 185

(3d Cir. 2003); 8 U.S.C. § 1158(a)(3), we have noted that, pursuant to the REAL ID Act

of 2005, we retain jurisdiction over “‘constitutional claims or questions of law raised

upon a petition for review . . . .’” Jarbough v. Attorney General, 483 F.3d 184, 188 (3d

Cir. 2007) (quoting 8 U.S.C. § 1252(a)(2)(D)). However, because Soekarjan failed to

challenge the IJ’s determination that his asylum claim was time-barred in his petition for

review, any such claim he might have had is deemed waived. See Vente v. Gonzales, 415

F.3d 296, 299 n.3 (3d Cir. 2005).

       To be entitled to withholding of removal to a specific country, an applicant must

prove that it is more likely than not 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); Zubeda v. Ashcroft, 333 F.3d 463,

469 (3d Cir. 2003). In the event that the applicant cannot demonstrate past persecution or

a likelihood of future individualized persecution, he may still be eligible for withholding

of removal by demonstrating “that in that country there is a pattern or practice of

persecution of a group of persons similarly situated to the applicant” on account of a

protected ground. See 8 C.F.R. § 208.16(b)(2). For relief under the CAT, an applicant

must demonstrate that it is more likely than not that he would be tortured if removed to

his country of origin. See 8 C.F.R. § 208.16(c)(2).

       With respect to Soekarjan’s withholding of removal claim, we agree that he did not

demonstrate past persecution or that he would more likely than not suffer future

                                              3
persecution if returned to Indonesia. In support of his application, Soekarjan testified that

while he and his wife were on their way to church one day in 1999, they saw two trucks

full of Muslims carrying sticks and shouting insults and epithets about Christians. They

decided not to go to church that day because they thought they would be threatened or

beaten by the Muslims. Then, in 2000, they were holding a fellowship prayer meeting at

their home when rocks were thrown through their windows. Soekarjan testified that there

was some broken glass, some of their visitors were injured, and his mother-in-law

suffered a heart attack from the shock of the attack and died approximately one week

later. He indicated that he did not know for certain who threw the rocks at his house but

that he was “convinced that Muslims threw the rocks . . . [because] the Muslims who live

around the area dislike our presence.” (A.R. 107.)

       The IJ found that, while his testimony was credible, the incidents related by

Soekarjan were not sufficiently severe and extreme to constitute past persecution, and that

there was no evidence in the record to suggest that Soekarjan might be singled out for

future persecution if he and his wife were to return to Indonesia. The IJ further

concluded that the case law in this Circuit is that there is no pattern and practice of

persecution of Christians in Indonesia, see Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.

2005); In re A-M, 23 I. & N. Dec. 737, 741 (BIA 2005), and that Soekarjan had not

offered any proof to call those holdings into question. Finally, the IJ concluded that

Soekarjan had not shown that he is more than likely to be tortured upon his return to

Indonesia, and therefore was not entitled to relief under the CAT. See Lukwago v.

                                              4
Ashcroft, 329 F.3d 157, 183 (3d Cir. 2003).

       As we cannot conclude that the evidence compels a contrary conclusion, we will

deny the petition for review.




                                              5
