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


4-10-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5188




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"Kristiono v. Atty Gen USA" (2007). 2007 Decisions. Paper 1334.
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                                                                    NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 05-5188
                                     ___________


                               HENDRA KRISTIONO,

                                                      Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                                                 Respondent
                             ________________________

                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                 (BIA No. A 97-149-880)

                           Immigration Judge: R. K. Malloy
                                    ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  March 12, 2007

          BEFORE: FUENTES, VAN ANTWERPEN, and SILER,* Circuit Judges.

                                 (Filed: April 10, 2007)

                              OPINION OF THE COURT
                                   ____________



      *
       The Honorable Eugene E. Siler, Jr., Senior Judge for the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
FUENTES, Circuit Judge.

       Petitioner entered the United States in March 1999 and overstayed his visa. The

Department of Homeland Security issued him a notice to appear in June 2003 and on

April 17, 2003, he applied for asylum, withholding of removal, and relief under the

United Nations Convention Against Torture. An immigration judge (“IJ”) denied relief

and the Board of Immigration Appeals (“BIA”) affirmed. We have jurisdiction to review

the BIA’s order under 8 U.S.C. § 1252, and we will deny the petition for the reasons that

follow.

                                              I.

       Kristiono is a citizen of Indonesia who testified to the following facts in his

application and at his hearing before the IJ. He has suffered humiliation and

discrimination his whole life because he is ethnically Chinese and Christian. In May

1998, rioters stopped his car and beat him and a friend because they were ethnically

Chinese. Police took Kristiono to the hospital where he stayed for three days, but his

friend died of injuries. Kristiono also testified that Muslims have called him an “infidel”

and that, on one occasion, Muslims threw rocks at him.

       After noting that Kristiono did not seek relief until several years after his arrival in

the United States, the IJ denied his application for asylum because no extraordinary

circumstances justified the untimely filing. The IJ also determined that the May 1998

beating did not constitute persecution and that Kristiono had not demonstrated that it was

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more likely than not that he would be persecuted or tortured upon return to Indonesia.

The BIA adopted and affirmed the findings of the IJ, and so we review the decision of the

IJ. See Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir. 2006).

                                            II.

       We do not have jurisdiction to review the IJ’s finding that no extraordinary or

changed circumstances excused Kristiono’s failure to apply for asylum before the one-

year-deadline. See Sukwanputra, 434 F.3d at 635 (“[D]espite the changes of the REAL

ID Act, 8 U.S.C. § 1158(a)(3) continues to divest the court of appeals of jurisdiction to

review a decision regarding whether an alien established changed or extraordinary

circumstances that would excuse his untimely filing.”).

       To qualify for withholding of removal, an applicant must demonstrate a “clear

probability” of persecution if removed; in other words persecution must be more likely

than not. INS v. Stevic, 467 U.S. 407, 413, 430 (1984). We review the IJ’s denial of

withholding of removal under a substantial evidence standard. “If a reasonable fact

finder could make a particular finding on the administrative record, then the finding is

supported by substantial evidence.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).

The IJ’s findings “must be upheld unless the evidence not only supports a contrary

conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).

       Substantial evidence supports the IJ’s conclusion that Kristiono did not meet the

                                             3
standard for withholding of removal. Kristiono worries that riots similar to those in 1998

will occur again and that he will suffer injury. This concern, however, is insufficient to

meet the clear probability standard, especially in light of country reports suggesting that

conditions have improved. In addition, his claim that Muslims threw rocks at him once

does not indicate that it is more likely than not that he will be persecuted upon removal.

       Finally, Kristiono has not argued on appeal that he is entitled to relief under the

Convention Against Torture, though we note that substantial evidence supports the IJ’s

decision with regard to that claim as well.

                                              III.

       Kristiono has failed to demonstrate that the BIA or IJ erred in rejecting his

application for asylum, withholding of removal, and relief under the Convention Against

Torture. For the reasons discussed above, we will deny the petition.




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