                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2194




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                                                                  NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 04-2194
                                      ____________

                                  LIDIANA SULIMIN,

                                             Petitioner

                                             v.

      ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,

                                           Respondent
                                       ____________

         On Petition for review of an Order of the Board of Immigration Appeals
                                  INS No. A79 318 381
                                      ____________

                Submitted Under Third Circuit LAR 34.1(a) July 12, 2005

                 Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

                                   (Filed July 19, 2005)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

ROSENN, Circuit Judge.

        Petitioner Lidiana Sulimin appeals a final order of removal by the Board of

Immigration Appeals (“BIA”).1 Petitioner is a forty-two-year-old native and citizen of

  1
       Because we write primarily for the parties, their counsel, and the BIA, we set forth
only the salient factual and procedural background of these proceedings.
Indonesia, where she claims that she was persecuted because she is of Chinese descent

and Catholic. Petitioner entered the United States lawfully in October 2000, but

overstayed her visa time limitations. She conceded removability and applied for asylum,

restriction on removal, and protection under the Convention Against Torture. After a

hearing on Petitioner’s application, at which she was represented by counsel and aided by

an interpreter, an immigration judge (“IJ”) denied relief. The IJ found that Petitioner’s

testimony was incredible and determined that she failed to demonstrate past persecution

or a well-founded fear of future persecution based on her ethnicity or religion. The IJ

also concluded that Petitioner filed a frivolous asylum application. The BIA adopted and

affirmed the IJ’s decision. On appeal, Petitioner challenges the denial of asylum and the

determination that her asylum application was frivolous.

       We conclude that the denial of asylum is supported by substantial evidence, and

therefore affirm that aspect of BIA’s order. However, the IJ failed to make the important

and necessary findings to support a determination that Petitioner filed a frivolous asylum

application, as required by the regulations set forth in 8 C.F.R. § 208.20 (2000). We

therefore grant the petition for review relating to the frivolous asylum application issue.

                                              I.

       In support of her claim that she suffered persecution in her native Indonesia on

account of her ethnicity, Petitioner primarily claims that she was the victim of three

robberies or attempted robberies during which her assailants assaulted her and uttered



                                              2
ethnic slurs. The first incident occurred in May 1998, when riots erupted in Indonesia.

Petitioner testified that five men stopped the bajaj (a three-wheeled taxicab) in which she

was riding alone and demanded money. When she responded that she had no money, the

men told her to “go back to your country you Chinese!” and threatened to kill her.

Petitioner testified that the men grabbed her breasts, spit at her, and slashed her leg, which

required seven stitches.

       The second incident occurred sometime in 1999, but Petitioner could not recall

the date or month. She alleges that ten men armed with knives and firearms hijacked the

bus in which she was riding with approximately thirty other passengers. She claims that

the robbers targeted the five ethnic Chinese passengers, demanding their money and that

they “go back to [their] country.” When she told the hijackers that she had no money,

they threatened to strip away her clothing. She claims that one man slapped her.

       The third incident allegedly occurred in June 2000. Petitioner testified at her

hearing that, when the bajaj in which she was riding passed by a bank, two people on a

motorcycle rode along side her, pulled her from the vehicle, and robbed her. In her

second affidavit in support of her asylum application, Petitioner attested that one of the

robbers stuck a knife into her armpit, told her, “Chinese, you have to pay to live in my

country,” and forced her to withdraw money from an automated teller machine.

       In support of her religious persecution claim, Petitioner testified that she was

often taunted by Muslims as she walked to her Roman Catholic church, which she



                                              3
attended once or twice a week. Petitioner also relies on two U.S. State Department

reports describing intolerance of religious minorities, including Catholics, in Indonesia.

       Although Petitioner concedes that her hearing testimony was vague and

inconsistent, she challenges the IJ’s adverse credibility finding and determination that her

asylum application is frivolous. Petitioner argues that she has demonstrated her refugee

status under section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. §

1101(a)(42)(A), and thus qualifies for asylum.

                                             II.

       An alien is eligible for asylum if she demonstrates that she is a “refugee,” which

requires her to demonstrate an inability or unwillingness to return to her country of

nationality because of past persecution or a well-founded fear of future persecution on

account of race, religion, nationality, political opinion, or membership in a particular

social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). Persecution is marked by

“extreme behavior, including ‘threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft,

341 F.3d 214, 217 (3d Cir. 2003) (internal quotation marks and citation omitted). To

demonstrate past persecution, an asylum applicant must show that she experienced: (1)

an incident rising to the level of persecution; (2) that occurred “on account of one of the

statutorily-protected grounds”; and (3) was committed by the government or forces the

government is unwilling or unable to control. Gao v. Ashcroft, 299 F.3d 266, 272 (3d



                                              4
Cir. 2002) (internal quotation marks and citation omitted). A well-founded fear of future

persecution is demonstrated by a “subjective fear of persecution that is supported by

objective evidence that persecution is a reasonable possibility” if the asylum applicant is

removed. Chang v. I.N.S., 119 F.3d 1055, 1066 (3d Cir. 1997). An applicant’s testimony

alone may be sufficient to support her claim, but it must be credible. Gao, 299 F.3d at

272.

       Where, as here, the BIA affirms without opinion, the IJ’s decision becomes the

final agency determination for purposes of review. 8 C.F.R. § 1003.1(e)(4); Dia v.

Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003) (en banc). We review the IJ’s factual

findings, including adverse credibility determinations, under the substantial evidence

standard. Under this standard, we must uphold the IJ’s findings “unless the evidence not

only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477,

484 (3d Cir. 2001). However, we exercise de novo review of the conclusion that

Petitioner’s asylum application was frivolous under 8 U.S.C. § 1186(d)(6).

                                            III.

       A.     Denial of Asylum Application

       Citing to numerous inconsistencies, inaccuracies, and holes in Petitioner’s

testimony, the IJ concluded that she lacked credibility. However, assuming arguendo that

Petitioner’s testimony were credible, the IJ also concluded that she failed to proffer any

evidence of past persecution or a well-founded fear of future persecution on account of



                                             5
her ethnicity or religion. These findings are supported by the record.

        Petitioner’s testimony is rife with inconsistencies and omissions of salient details.

For just one example, she could not recall the month in which the 1999 bus hijacking and

robbery occurred. She explained that she recalled the date when she was robbed and

assaulted in May 1998, because that incident transpired during rioting which “was a very

huge incident in Indonesia,” whereas the 1999 bus hijacking “wasn’t known worldwide.”

Attempting again to justify her memory lapse, Petitioner explained that the 1999 bus

hijacking “happened so quickly.” Yet, she also testified that the incident lasted for one-

and-a-half hours, or for what seemed to her to be “a long time.”

        Even if Petitioner’s testimony were credible, she would nevertheless fail to

demonstrate past persecution on account of her ethnicity or religion. The incidents that

she describes do not amount to persecution. Though dismaying, the robberies and assaults

appear to be street crimes under a government temporarily out of control, and lack the

extremeness of persecution. Ahmed, 341 F.3d at 217. As the IJ observed, they are three

separate and apparently random crimes that occurred over the course of two years, not a

concerted course of criminal behavior directed at Petitioner. Lie v. Ashcroft, 396 F.3d

530, 536 (3d Cir. 2005). Further, these crimes were perpetrated by unknown individuals,

not government officials. Gao, 299 F.3d at 272. Furthermore, although Petitioner’s

assailants uttered ethnic slurs, there is insufficient evidence that the robberies and assaults

were motivated in any way by Petitioner’s ethnicity or religion. Lie, 396 F.3d at 535.



                                              6
       Likewise, the IJ properly concluded that Petitioner has failed to demonstrate a

well-founded fear of future persecution based on her Chinese ethnicity or Catholic

religion if she returns to Indonesia. Petitioner presented no evidence of her own

persecution or a pattern or practice of persecution of ethnic Chinese or Catholics in

Indonesia. Lie, 396 F.3d at 356- 58.

       B.     Frivolous Asylum Application

       The IJ concluded that Petitioner’s asylum application was frivolous based on “the

contradiction in” her testimony, “the grave differences between” her testimony and her

second affidavit in support of her application, and her inability to recall when certain

events occurred. Although Petitioner concedes that her hearing testimony contained

inconsistencies, she argues the inconsistencies are too minor to satisfy the heightened

standard of a frivolous application finding. She contends that there is insufficient

evidence that she deliberately fabricated testimony. The Government’s brief to this Court

informs us that it “will not defend the IJ’s separate finding that petitioner submitted a

frivolous application.”

       A finding that an alien’s asylum application is frivolous may render the alien

“permanently ineligible for any benefits under” the immigration laws. 8 U.S.C. §

1158(d)(6). Because the consequences of a finding of frivolousness are so severe, the

implementing regulation for § 1158(d)(6) requires a specific finding that the alien

“deliberately fabricated” a “material element” of her asylum application. Muhanna v.



                                              7
Gonzales, 399 F.3d 582, 589 (3d Cir. 2005) (quoting 8 C.F.R. § 208.20). We have held

that an adverse credibility finding alone cannot support a finding of frivolousness. Id.

(“[A] finding of frivolousness does not flow automatically from an adverse credibility

determination . . . . Inconsistencies between testimony and an asylum application, while

certainly relevant to a credibility determination that may result in the denial of an

applicant’s asylum claim, do not equate to a frivolousness finding under Section

1158(d)(6), which carries with it much greater consequences.”).

        Here, the IJ apparently based the frivolousness determination solely on the

adverse credibility finding. The IJ failed to examine Petitioner’s asylum application and

make specific findings as to which material elements of her application were deliberately

falsified, as required by 8 C.F.R. § 208.20.2 Although the IJ noted that Petitioner’s

asylum application and initial affidavit contained some false statements, this finding was

not the basis for the determination that her application was frivolous.3 Because an


  2
              The IJ, however, provided Petitioner with ample opportunity to explain the
discrepancies and implausibilities in her claim. See 8 C.F.R. § 208.20.
  3
              Petitioner’s asylum application and initial affidavit falsely state that “young
native Indonesians” gang-raped her and killed her mother. Petitioner testified that she
paid $1,000 to a man named “Kenny” to prepare her asylum application and affidavit, and
that when she had someone translate these documents for her one day before her
interview with an immigration officer, she learned that they contained false statements. It
is unclear from the record whether Petitioner knew that Kenny would include false
statements in her application and initial affidavit. Petitioner testified that Kenny told her
beforehand: “the story, I make it for you,” but that she “didn’t understand what exactly”
Kenny was “saying.”
       Subsequently, Petitioner submitted a second affidavit in support of her application,
which, she reiterated at her hearing, contains accurate statements. The IJ based his

                                              8
adverse credibility finding is not coextensive with a determination that an application is

frivolous, the IJ’s determination does not comply with the applicable regulations. See

Muhanna, 399 F.3d at 589; Lin v. Ashcroft, 83 Fed. Appx. 480, 486-88 (3d Cir. 2003).




                                             IV.

       For the foregoing reasons, we affirm the denial of Petitioner’s asylum application,

but vacate the determination that her asylum application was frivolous. Accordingly, we

grant the petition for review pertaining to the frivolous application issue.




frivolousness finding on the discrepancies between Petitioner’s hearing testimony and the
statements contained in her second affidavit.

                                              9
