                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3304




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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                 No. 06-3304
                                ____________

                              LAN HIONG NIO;
                             YUAN SHEN WONG,

                                                   Petitioners,

                                      v.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                                  Respondent.
                                ____________

                        On Petition for Review from an
                   Order of the Board of Immigration Appeals
                   (Board Nos. A79-326-405 & A79-326-406)
                   Immigration Judge: Honorable R.K. Malloy
                                 ____________

                  Submitted Under Third Circuit LAR 34.1(a)
                             December 10, 2007

         Before: McKEE, CHAGARES and HARDIMAN, Circuit Judges.

                           (Filed: December 11, 2007)
                                  ____________

                           OPINION OF THE COURT
                                ____________

HARDIMAN, Circuit Judge.
       Lan Hiong Nio and her husband, Yuan Shen Wong, petition for review of an order

of the Board of Immigration Appeals (BIA) denying their applications for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT).

                                              I.

       Nio and Wong are Indonesian citizens of Chinese ethnicity who overstayed their

visas. Following a merits hearing, Immigration Judge (IJ) Rosalind K. Malloy denied

petitioners' requests for relief. The IJ found petitioners ineligible for asylum because they

failed to apply for asylum within one year of their respective arrivals and failed to

demonstrate extraordinary circumstances warranting a waiver of the one-year deadline.

The IJ also found petitioners ineligible for withholding of removal and protection under

the CAT, determining that they were not credible and that, even if they were credible,

they had not shown that they would more likely than not be persecuted or tortured upon

their return to Indonesia.

       On appeal, the BIA adopted and affirmed the findings of the IJ in a per curiam

opinion. The petitioners filed a timely petition for review.

                                              II.

       The crux of petitioners' claims for relief is that they suffered persecution in

Indonesia on account of their Chinese ethnicity and fear future persecution if they are

forced to return. At their merits hearing before the IJ, both Nio and Wong described a

May 1998 incident in which they were attacked by a group of native Indonesians while



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coming home from work on a motorcycle. On direct examination, Wong testified that the

group pushed him off of the motorcycle, punched him in the face, and struck him with a

piece of wood and a broken bottle. Wong also testified that after police broke up the

attack, he and his wife walked home prior to seeking medical attention at a hospital. On

cross-examination, Wong stated that his wife pushed their motorcycle home after the

attack, as he was too severely injured to do so himself. Wong also indicated that he did

not have any records from the hospital showing that he had received treatment.

       Nio also described the May 1998 attack, testifying that the group dragged her away

from her husband and attempted to rape her before the police interceded. Contrary to her

husband’s account, Nio testified that they left the motorcycle at the scene and called a

taxi. When asked about this discrepancy on cross-examination, Nio initially insisted that

the motorcycle was left behind, but upon further thought said that they walked the

motorcycle home.

       In addition to the May 1998 motorcycle attack, Wong described an April 1998

incident in which he came home to find that their house had been looted. Wong testified

that he did not report this incident to the police and was eventually able to replace the

items that had been taken. Although Wong did not explicitly state the ethnicity of the

looters in his testimony, a statement in Nio's affidavit indicated that their neighbors told

them the looters were native Indonesians.




                                              3
       Petitioners claim they should be excused from the one-year filing deadline for

asylum. Wong testified that he did not learn about the asylum process until "near the end

of 2000," approximately a year after his initial arrival, and that he waited until his wife

arrived in the United States before he applied for asylum. Both Nio and Wong testified

that they obtained the assistance of a non-attorney asylum application preparer named

"Liana." Nio testified that Liana: (1) said they needed supporting documents from

Indonesia before they could apply, and (2) failed to timely file the applications even after

Nio had signed her application with more than a month remaining on her one-year

deadline.

       The IJ found the petitioners statutorily ineligible for asylum. The IJ specifically

discredited Wong's testimony that he did not learn of the asylum process until the end of

2000, noting that it would be virtually impossible not to know about asylum given that

Wong associated with members of Philadelphia's Indonesian community at a time when

many applications were being filed in the wake of the May 1998 riots. Furthermore, the

IJ noted that, even if Wong's testimony were credible, lack of knowledge of the asylum

process was not a valid ground for waiving the one-year filing deadline.

       Although the IJ took administrative notice that an individual named Liana was

under investigation by Philadelphia immigration authorities for filing large numbers of

applications and failing to follow through on many of them, the IJ noted that Nio did not

obtain "the one document that would cooberate (sic) [her] testimony" regarding Liana's



                                              4
advice to collect documents – Wong's hospital records from the May 1998 motorcycle

attack. Moreover, the IJ refused to place the blame squarely on Liana, emphasizing that

Nio knew about the asylum process from the time of her arrival in the United States and

"had plenty of time to file a timely application."

       The IJ also found petitioners ineligible for withholding of removal and protection

under the CAT, citing inconsistencies in their testimony regarding the May 1998

motorcycle attack as well as the absence of any corroborating evidence. The IJ

determined that even if she were to accept petitioners' account of the May 1998 attack and

the April 1998 looting, this harm did not rise to the level of persecution or constitute

torture. Finally, the IJ emphasized Wong's admission that he had come to the United

States because of the poor state of the Indonesian economy.

       The BIA dismissed the petitioners’ appeal, adopting and affirming the IJ’s findings

that the petitioners were statutorily ineligible for asylum and were ineligible for

withholding of removal and protection under the CAT.

                                             III.

       Although ordinarily we have jurisdiction to review applications for asylum

pursuant to 8 U.S.C. § 1252(a)(1), we lack jurisdiction to review the Attorney General’s

determinations regarding the timeliness of asylum applications. See 8 U.S.C.

§ 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003) (§ 1158(a)(3)

"clearly deprives us of jurisdiction to review an IJ's determination that an asylum petition



                                              5
was not filed within the one year limitations period, and that such period was not tolled by

extraordinary circumstances"). Therefore, we lack jurisdiction to review the denial of the

petitioners' asylum applications on timeliness grounds.

       With regard to the petitioners' applications for withholding of removal and

protection under the CAT, however, we have jurisdiction to review the denials of these

applications pursuant to 8 U.S.C. § 1252(a)(1).

                                             IV.

       We begin by considering the IJ's adverse credibility determination, which was

adopted by the BIA. Adverse credibility determinations are reviewed under the

substantial evidence standard, which requires them to be upheld unless "any reasonable

adjudicator would be compelled to conclude to the contrary." Xie v. Ashcroft, 359 F.3d

239, 243 (3d Cir. 2004).

       Here, petitioners’ testimony contained marked inconsistencies, most notably their

differing accounts of the aftermath of the May 1998 motorcycle attack. In addition,

petitioners failed to present any evidence – such as hospital records or police reports – to

corroborate their accounts of the motorcycle attack or the looting incident. Accordingly,

we find that a reasonable adjudicator would not be compelled to conclude that the IJ's

adverse credibility determination was incorrect.

       We also note that even if petitioners’ testimony were true, they still have not

described harm that is sufficiently severe to constitute “persecution.” In order to be



                                              6
eligible for asylum, an applicant must demonstrate that she has suffered persecution or

has a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R.

§ 208.13(b). In Fatin v. INS, we defined persecution as “threats to life, confinement,

torture, and economic restrictions so severe that they constitute a threat to life and

freedom.” 12 F.3d 1233, 1240 (3d Cir. 1993). Despite the troubling nature of the two

incidents described by petitioners, they are nevertheless isolated criminal acts that do not

meet this stringent standard. See Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005) (finding

that an asylum applicant suffering a knife wound and subjected to ethnic slurs during a

robbery had not suffered persecution).

       Petitioners also have failed to establish the “clear probability” of future

persecution that is required for withholding of removal. In order to meet the less stringent

“well-founded fear” standard that is applicable to asylum claims, the petitioners must

demonstrate either that they face an individualized risk of persecution or that there is a

“pattern or practice” of persecution of Chinese Christians in Indonesia. Lie, 396 F.3d at

537. Petitioners have not shown that they would be singled out for persecution upon

return to Indonesia; in addition, although there is evidence that some anti-Chinese

violence persists in Indonesia, it does not rise to the level of a “pattern or practice.” See

Lie, 396 F.3d at 537. Because petitioners have “fail[ed] to establish the well-founded fear

of persecution required for a grant of asylum, [they] will, by definition, have failed to

establish the clear probability of persecution required for withholding of deportation.”



                                               7
Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). Therefore, we conclude that

petitioners’ claim for withholding of removal fails.

       Finally, we note that the petitioners do not provide any reason why they would be

subjected to torture if they are returned to Indonesia, which dooms their claim for

protection under the CAT.

                                            V.

       For the foregoing reasons, we will affirm the decision of the BIA and deny Wong

and Nio’s petition for asylum, withholding of removal, and protection under the CAT.




                                             8
