                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-2200
                                     ___________

                       RETNO MAWARSARY; FNU EFFENDI,
                                           Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                   (Agency Nos. A079-318-293 and A079-318-294)
                  Immigration Judge: Honorable Rosalind K. Malloy
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 20, 2011

          Before: McKEE, Chief Judge, SMITH and GARTH, Circuit Judges

                            (Opinion filed: April 21, 2011)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Petitioners Fnu Effendi and Retno Mawarsary petition for review of a final

removal order issued by the Board of Immigration Appeals (“Board” or “BIA”) denying

their applications for asylum, withholding of removal, protection under the Convention
Against Torture (“CAT”), and voluntary departure. We will affirm.

                                             I.

       Effendi and Mawarsary, husband and wife, are Indonesian citizens of Chinese

ethnicity. They entered the United States in April 1999, but failed to timely depart. In

April 2001, Mawarsary filed an application for asylum and related relief with the former

Immigration and Naturalization Service, now the United States Department of Homeland

Security (“DHS”). She included an affidavit with her application, claiming that in April

1999 a taxi driver sexually assaulted her, targeting her specifically because she is

Chinese. In June 2001, an asylum officer interviewed Mawarsary, declined to grant her

asylum, and referred her application to the immigration court.

       In July 2001, DHS issued both Petitioners Notices to Appear, charging them with

removability pursuant to INA § 237(a)(1)(B), for having remained in the United States

longer than permitted. In March 2004, Mawarsary conceded removability and renewed

her applications for relief. Effendi separately filed applications for asylum, withholding

of removal, CAT protection, and voluntary departure based on his Chinese ethnicity and

because he is a Christian.

       Prior to the administrative hearing, DHS submitted evidence to the immigration

court indicating that an employee of the Chinese Indonesian American Society (“CIAS”)

had prepared Mawarsary’s asylum application. Between 1999 and 2004, several CIAS

employees, including the employee who prepared Mawarsary’s application, were arrested

and convicted of defrauding the U.S. Government and the Commonwealth of Virginia by
                                             2
preparing and submitting fraudulent asylum applications. DHS also submitted evidence

showing that Mawarsary’s affidavit was identical to an affidavit prepared by CIAS that

had previously been deemed fraudulent.

       At Petitioners’ merits hearing, the Immigration Judge (“IJ”) gave Mawarsary an

opportunity to withdraw or revise her affidavit in light of DHS’ evidence. She declined

to do so and Petitioners proceeded to testify on their own behalf. A psychologist, Dr.

Judy Eidelson, also testified on behalf of Petitioners at the hearing.

       Mawarsary claimed that, in 1999, a taxi driver took her to an isolated area,

threatened her with a knife, and forced her to perform sexual acts. After he left,

Mawarsary testified that she walked to a nearby home, where she slept overnight. The

next morning, she called Effendi, who picked her up and took her to the police station to

file a report. Later that month, she alleged that the police told her that they had not yet

apprehended her attacker and she did not inquire further about the status of her

complaint.

       Effendi also alleged that he was harmed in Indonesia. He claimed that during the

widespread riots that took place in Indonesia in May 1998, he was caught in the middle

of a violent anti-government student demonstration. He alleged that the students pulled

him out of his car, beat him, and threatened to kill him because he is Chinese. Effendi

claimed that he passed out, but later awoke in a hospital with his front teeth knocked out.

The hospital discharged him later that day.

       Dr. Eidelson testified that, in September 2003, she interviewed Mawarsary for two
                                              3
hours. Based on that interview, she diagnosed her with Post Traumatic Stress Disorder

(“PTSD”) stemming from the incident involving the taxi driver, and a previous incident

when she was attacked while riding on a bus in Indonesia. Dr. Eidelson testified that

Mawarsary appeared credible during their meeting.

       Following the merits hearing, the IJ denied Petitioners’ applications for relief and

ordered them removed to Indonesia. She first determined that they were statutorily

ineligible for asylum because they failed to file their applications within one year of

entering the United States. She also determined that Petitioners knowingly filed a

frivolous application for asylum.1

       The IJ further concluded that Mawarsary’s claim of past persecution was not

credible, and that Effendi’s experiences in Indonesia did not rise to the level of

persecution. As to both Petitioners, the IJ held that they failed to establish a clear

probability of future persecution, or torture, so as to qualify for withholding of removal or

CAT protection. Finally, she denied their requests for a grant of voluntary departure.

       The BIA dismissed in part, and sustained in part, Petitioners’ appeal. The Board

affirmed the IJ’s finding that Petitioners were statutorily ineligible for asylum and that

they were unable to qualify for an exception to the filing time-bar. However, the Board

sustained Petitioners’ challenge to the IJ’s finding that they filed a frivolous asylum

application. The Board affirmed the IJ in all other respects.


       1
         An asylum application is frivolous if any of its material elements is deliberately
       fabricated. 8 C.F.R § 208.20.
                                              4
                                             II.

       This Court has authority to review final orders of removal. See 8 U.S.C. §

1252(a). We will review the immigration judge’s opinion to the extent it was adopted by

the BIA. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). “We apply

substantial evidence review to agency findings of fact, departing from factual findings

only where a reasonable adjudicator would be compelled to arrive at a contrary

conclusion.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191 (3d Cir. 2005). We

“uphold the findings of the [IJ and] BIA to the extent that they are supported by

reasonable, substantial and probative evidence on the record considered as a whole[.]”

Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).

                                             III.

       Petitioners’ sole argument on appeal is that the BIA erred when it “incorporated

the IJ’s finding that Petitioners submitted a frivolous finding in its analysis of whether or

not [they] are entitled to withholding of removal – despite the fact that the IJ had

exceeded her authority in determining the applications to be frivolous.”2 (Petitioners’

Brief (“Pet. Br.”) at 6.) Petitioners suggest that the BIA’s ruling ran afoul of our holding

in Luciana v. Att’y Gen., 502 F.3d 273, 280 (3d Cir. 2007). After reviewing the record,



       2
        We note that Petitioners have waived review of the agency’s denial of their
       applications for asylum, CAT protection, and voluntary departure. See United
       States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an
       appellant’s failure to identify or argue an issue in his opening brief constitutes
       waiver of that issue on appeal.”).
                                              5
we conclude that Petitioners’ argument is without merit.

       In Luciana, we determined that because the petitioner was statutorily time-barred

from filing her asylum application, the falsehood at issue in her case was “incapable of

influencing the decision-makers, and therefore it was not material.” Id. Because it was

not material, it “was an error of law” to conclude that her asylum application was

frivolous. Id. Here, the Board correctly applied Luciana and determined that the IJ erred

in ruling that that Petitioners’ time-barred asylum application was also frivolous.

       Contrary to Petitioners’ assertion, the BIA did not then incorporate the IJ’s

improper frivolous finding into its separate analysis of Petitioners’ eligibility for

withholding of removal. Instead, the Board determined that the record as a whole,

including evidence that Mawarsary’s claim of past persecution was fabricated, supported

the IJ’s finding that Petitioners failed to meet their burden of proof under the withholding

of removal standard.3 (A.R. 4-5.) Petitioners do not dispute the agency’s credibility

determination, nor do they argue that the evidence they presented established a clear

probability of persecution on account of an enumerated ground.4



       3
         Withholding of removal is mandatory once “the Attorney General decides that
       the alien’s life or freedom would be threatened in that country” on account of race,
       religion, nationality, membership in a particular social group, or political opinion.
       8 U.S.C. § 1231(b)(3). To obtain such relief, the applicant must establish by a
       “clear probability” that it is more likely than not that he or she would suffer
       persecution upon return to his or her country. Kaita v. Att’y Gen., 522 F.3d 288,
       296 (3d Cir. 2008).
       4
           Indeed, the IJ explicitly noted that conditions have improved for Indonesian
                                               6
       Instead, they appear to argue that the agency was precluded from assessing their

credibility in order to determine their eligibility for withholding of removal. See Pet. Br.

at 10-11. However, we have held that “credibility, by itself, may satisfy [an applicant’s]

burden or doom his claim as to both withholding of removal and protection under the

[CAT].” See Muhanna v. Gonzales, 399 F.3d 582, 589 (3d Cir. 2005). Furthermore, a

finding of adverse credibility is not the same as a finding that that an alien has submitted

a frivolous asylum application. See Luciana, 502 F.3d at 278, Khadka v. Holder, 618

F.3d 996, 1002 (9th Cir. 2010). We discern no error on the part of the BIA regarding its

review of Petitioners’ eligibility for withholding of removal.

       Accordingly, we will deny the petition for review. Petitioner’s motion to stay the

final order of removal is denied as moot.




       citizens of Chinese ethnicity since Petitioners left the country in 1999, and that
       Petitioners’ family members have remained in Indonesia unharmed. (A.R. 287-
       88.) Thus the BIA agreed with the IJ’s analysis and that there was little likelihood
       that Petitioners will be persecuted if returned to Indonesia.
                                              7
