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


11-21-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3996




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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 05-3996


                        KORI TANUASIH TANUDIDJAJA;
                              BAMBANG HERY,
                                         Petitioners

                                        v.

               ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals
                      BIA Nos. A79-326-394 and A79-326-395
               (U.S. Immigration Judge: Honorable Donald V. Ferlise)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 8, 2006

      Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges

                           (Filed: November 21, 2006)



                           OPINION OF THE COURT


SCIRICA, Chief Judge.
       Kori Tanuasih Tanudidjaja petitions for review of the Board of Immigration

Appeals’ August 2, 2005, order affirming an Immigration Judge’s denial of her

application for asylum. We will deny the petition.

                                             I.

       Tanudidjaja, a native and citizen of Indonesia who identifies herself as an “ethnic

Chinese,” entered the United States in November 2000 on a temporary visa that expired

in May 2001. In July 2001, she applied for asylum, claiming she had suffered past

persecution in Indonesia on account of her ethnicity and religious beliefs.1 Her first

affidavit was appended to that application. In August 2001, she was served by the INS

with a notice to appear charging she had overstayed the term of her visa and was

removable from the United States. Tanudidjaja conceded her removability, and submitted

a second affidavit in support of her application for asylum, withholding of removal, and

withholding under the Convention Against Torture. After a hearing at which Tanudidjaja

testified, the IJ denied her application in a February 24, 2004, oral decision, finding she

lacked credibility and, alternatively, had failed to make a sufficient case of persecution to

receive asylum. The IJ ordered Tanudidjaja removed to Indonesia.

       Among other evidence, the IJ considered Tanudidjaja’s two affidavits, her

testimony, and a State Department report on Indonesia. Tanudidjaja contended she had

been discriminated against in her studies and her employment, had been robbed on at least


   1
    Tanudidjaja’s husband, Bambang Hery, did not file his own application for asylum,
and was consequently only considered a derivative party on her application for asylum.

                                              2
three occasions, and had been the victim of attempted arson—all on account of her

ethnicity. She also contended she and her husband had been the targets of violence on

account of their ethnicity and religion. In his oral decision, the IJ noted several

inconsistencies among the first and second affidavits and Tanudidjaja’s testimony,

particularly her varying accounts of riots in 1998 and an occasion on which she contends

individuals attempted to set fire to her house. He also noted her failure ever to mention in

her first affidavit that she had held a prayer meeting at her house outside of which

demonstrators had protested. Additionally, the IJ found unconvincing Tanudidjaja’s

explanations for why she had never reported to the Indonesian police any of the incidents

she described. He concluded Tanudidjaja’s application lacked credibility. The IJ further

concluded Tanudidjaja had not presented sufficient evidence to show she had ever been

persecuted in the past on account of her ethnicity or religion, or to establish a well-

founded fear of persecution.

         Tanudidjaja appealed the IJ’s decision to the BIA. The BIA affirmed without

opinion under 8 C.F.R. § 1003.1(e) on August 2, 2005, rendering the IJ’s decision the

final BIA determination. Tanudidjaja filed this petition for review, along with a motion

for stay of removal pending its resolution, on August 25, 2005.2

         The BIA had jurisdiction to review the IJ’s order under 8 C.F.R. § 1003.1(b)(3).

We have jurisdiction to review the BIA’s final order under 8 U.S.C. § 1252.



   2
       We denied the motion for stay of removal in a November 17, 2005, order.

                                              3
       Where the BIA affirms the IJ’s decision without opinion under 8 C.F.R. §

1003.1(e), we review the IJ’s decision. Partyka v. Attorney General, 417 F.3d 408, 411

(3d Cir. 2005). We review legal determinations de novo, subject to established principles

of deference. Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004). Under 8 U.S.C. §

1252(b)(4)(B), “administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Factual findings must be

upheld if they are “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). This

substantial evidence standard applies to determinations whether an alien has experienced

or has a well-founded fear of persecution, see Abdille v. Ashcroft, 242 F.3d 477, 483–84

(3d Cir. 2001), as well as adverse credibility determinations, see Gao v. Ashcroft, 299

F.3d 266, 272 (3d Cir. 2002).

                                            II.

       Tanudidjaja contends the IJ’s “pure suspicion” of contradictions between her

testimony and affidavits was not an adequate basis for denying her asylum application.

An applicant has the burden of establishing eligibility for asylum, withholding of

removal, and relief under the Convention Against Torture. The applicant may satisfy the

burden through his or her own credible testimony. Mulanga v. Ashcroft, 349 F.3d 123,

133 (3d Cir. 2003) (citing 8 C.F.R. §§ 208.13, 208.16). “In making an adverse credibility

determination, the IJ must provide ‘specific, cogent reason[s]’ why the applicant is not

credible.” Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir. 2006) (alteration in

                                             4
original). If contradictory testimony is the basis of the adverse credibility determination,

minor inconsistencies are insufficient; rather, “[t]he discrepancies must involve the ‘heart

of the asylum claim.’” Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). Here, the

IJ specifically enumerated the reasons for his adverse credibility determination:

inconsistencies and a lack of sufficient explanation why Tanudidjaja failed to report any

incidents to the Indonesian police. The inconsistencies noted by the IJ between

Tanudidjaja’s two affidavits and her testimony involved the specific incidents that formed

the bases of her contention she had been persecuted on account of her ethnicity and

religion, the heart of her asylum claim. For instance, the IJ noted Tanudidjaja had failed

to mention any prayer meeting in her first affidavit. We conclude the IJ’s adverse

credibility determination was supported by substantial evidence.

       Tanudidjaja also contends the IJ erred in refusing to grant her asylum, because she

had shown she had suffered past persecution and had a well-founded fear of persecution if

she should return to Indonesia. An applicant seeking asylum on the basis of past

persecution must show: (1) one or more incidents that rise to the level of persecution; (2)

that occurred because of his or her membership in a statutorily-protected class; and (3)

that were committed by the government or by forces the government was either unable or

unwilling to control. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).

The IJ found, even assuming arguendo that Tanudidjaja had been credible, that she and

her husband had been “victims of street crimes, hooliganism and . . . riots that were

widespread through Indonesia,” but that “[n]one of the crimes that were committed

                                              5
against [Tanudidjaja] had its genesis in [her] race, religion, nationality, [or] membership

in a particular social group or political opinion.” In order to establish a well-founded fear

of persecution, an applicant for asylum must “show that he has a subjective fear of

persecution that is supported by objective evidence that persecution is a reasonable

possibility.” Abdille, 242 F.3d at 496. The IJ found there was no evidence the Indonesian

government persecutes Chinese or Catholics, and that Tanudidjaja had failed to establish

a well-founded fear of persecution. We conclude the IJ’s finding Tanudidjaja failed to

establish eligibility for asylum on the basis of past persecution or a well-founded fear of

persecution was supported by substantial evidence.3

                                             III.

       We will deny the petition for review.




   3
     The IJ also found Tanudidjaja had failed to establish eligibility for restriction on
removal, which requires the applicant to show it is more likely than not that he or she
would be subject to persecution if removed. Because we conclude the IJ’s determination
Tanudidjaja failed to establish eligibility for asylum was supported by substantial
evidence, it follows the IJ’s determination under the more rigorous standard was also
supported by substantial evidence. See Zubeda v. Ashcroft, 333 F.3d 463, 469–70 (3d
Cir. 2003) (“[I]f an alien fails to establish the well-founded fear of persecution required
for a grant of asylum, he or she will, by definition, have failed to establish the clear
probability of persecution required for withholding of deportation.”).

                                               6
