                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4185




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                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No.: 03-4185

                                   FUI KIM KHO,
                                              Petitioner

                                          v.

                            JOHN ASHCROFT,
                 ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent

                    On Petition for Review of an Order of Removal
                       from the Board of Immigration Appeals
                              U.S. Department of Justice
                      Executive Office for Immigration Review
                                BIA No.: A79 086 809

                            Submitted: November 12, 2004

   Before: McKEE, CHERTOFF, Circuit Judges and BUCKWALTER Senior District
                                    Judge.*
                      (Opinion filed: December 6, 2004)

                                      OPINION


McKEE, Circuit Judge.

       Fui Kim Kho petitions for review of the Board of Immigration Appeal’s Order

affirming the Immigration Judge’s Order of Removal.

                                 I. JURISDICTION


   *
    Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
                Before discussing the merits of Petitioner’s claim, we must address the

government’s contention that her failure to comply with the one year filing requirement

contained in INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(B) precludes our review absent

Petitioner establishing that she was prevented from complying with that requirement by

“extraordinary circumstances.” See Tarrawally v. Ashcroft, 338 F.3d 180, 184-5 (2d Cir.

2003).

         The IJ found that Petitioner’s application for asylum was filed after the requisite

filing period and that the she had not demonstrated any “extraordinary circumstances” to

excuse the late filing. The BIA affirmed the IJ’s legal and factual conclusions, and

nothing on this record suggests that the BIA erred in doing so. Accordingly, pursuant to

our decision in Tarrawally and the dictates of 8 U.S.C. § 208(a)(2)(B), we lack

jurisdiction to now review the IJ’s decision. Although we need say nothing more of

Petitioner’s claim, given the nature of her harm she alleges she would suffer upon

removal, we think it preferable to also explain that Petitioner would not qualify for relief

even if she had filed a timely application for relief.

                                      II. DISCUSSION

         Kim Kho is a native and citizen of Indonesia. She alleges that she was raped and

persecuted in her native land because of her Chinese ethnicity and her Christian faith.




                                               2
The Attorney General has discretion to grant asylum to an alien who qualifies as a

“refugee.” 8 U.S.C. § 1158(b). The Immigration and Naturalization Act defines a

“refugee” as:

       any person who is outside any country of such person’s nationality or, in the
       case of a person having no nationality, is outside any country in which such
       person last habitually resided, and who is unable or unwilling to return to,
       and is unable or unwilling to avail himself or herself of the protection of,
       that country because of persecution or a well-founded fear of persecution on
       account of race, religion, nationality, membership in particular social group,
       or political opinion.

8 U.S.C. § 1101(a)(42(A). In order to meet this standard, an alien must show that he/she

has a subjective fear of persecution that is supported by objective evidence that

persecution is a reasonable possibility. Chang v. INS, 119 F.3d 1055, 1166 (3d Cir.

1997). The BIA concluded that Petitioner had not introduced sufficient evidence to

support a subjective fear of persecution, and we must affirm the denial of relief if it is

supported by “substantial evidence.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d

Cir. 1998). “Substantial evidence is more than a scintilla, and must do more than create a

suspicion of the existence of the fact to be established. It means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion. ...” N.L.R.B. v.

Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939) (internal citations

omitted).

       Petitioner alleges that she was raped in Indonesia in a part of town where she knew

no one, and that she had no identification with her. She nevertheless claimed that her



                                              3
parents were notified by the hospital where she was being treated. She could not

articulate any specific injuries, and never reported the alleged rape to the Indonesian

police. Moreover, she “remained in Indonesia for two years after the most recent incident

without any further problems from the persons in her neighborhood who had purportedly

assaulted her.” A.R 2.

       Moreover, although Petitioner alleges that she was raped because of her Chinese

ethnicity and Christian beliefs, the record does not support that conclusion. She admits

that she has never been baptized, and could not provide any evidence of her religious

affiliation despite being given an extension to obtain testimony from a local pastor.

Based upon this record, the Immigration Judge found her claims of persecution were not

credible and the BIA affirmed. That credibility determination is consistent with the

record, and we believe Petitioner therefore failed to satisfy her burden of proving that she

is a “refugee”.1

                                            III.

       Based on the foregoing analysis, we will affirm the Board of Immigration Appeals

September 30, 2003 Decision and Order.




   1
    Since petitioner’s claim for asylum fails, she can not satisfy the more demanding
standard for withholding of removal. See Shardan, 382 F.3d 318 (3d Cir. 2004).

                                             4
