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


2-23-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2082




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                         No. 04-2082


                                BAM BANG SOEBIAKTO,

                                                           Petitioner
                                               v.

                  ATTORNEY GENERAL OF THE UNITED STATES,

                                                           Respondent




                        On Petition for Review of an Order of the
                           United States Department of Justice
                              Board of Immigration Appeals
                                  BIA No. A79-326-573
                    (Honorable Rosalind K. Malloy, Immigration Judge)




                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    January 31, 2006

           Before: MCKEE, VAN ANTWERPEN, and SILER*, Circuit Judges.

                                  (Filed February 23, 2006)
                                            ____

                                   OPINION OF THE COURT


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

       Petitioner Bam Bang Soebiakto, a native and citizen of Indonesia, petitions for review of a

final order of removal issued by the Board of Immigration Appeals (“BIA”) that affirmed without

opinion the Immigration Judge’s (“IJ”) denial of his applications for relief. For the reasons set forth

below, we dismiss the petition in part and deny the petition in part.

                                      I. Factual Background

       Because we write solely for the benefit of the parties, we will set forth only those facts

necessary to our analysis. Soebiakto, a 37 year old married male, fled Indonesia in 1999. He

arrived in New York as a non-immigrant visitor, and overstayed his visa. Before the IJ, he conceded

removability but sought relief from removal in the form of asylum and withholding of removal.

       In his written application for relief, Soebiakto claimed that because he was ethnically Chinese

and a Christian, he had been mistreated and discriminated against in Indonesia. He stated that he

sought asylum because he feared future persecution if he remained in Indonesia and he believed he

could become the target of violence by native Indonesians. He also sought asylum on the basis of

past persecution, citing “bitter experiences” as a result of his religion and ethnicity.

       Soebiakto owned a shop in Indonesia and claimed that native Indonesian gangs came there

asking for security money. He alleged that he was beaten while gang members looted and vandalized

his shop. He also claimed that they harassed him and his wife for money while they were stopped

at a traffic light, but that he did not open the window and sped away when the light turned green.

       At the hearing, Soebiakto testified that he was born Christian, attended the Pentecostal church

in Indonesia weekly, and graduated from a Christian university. However, twice Soebiakto admitted



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that he encountered no problems in Indonesia on the basis of his Christianity.

       Soebiakto testified that he learned of the possibility of asylum relief through his friends and

his church after arriving in the United States, but wanted to wait until his wife joined him here before

applying. He also testified that he knew about the possibility of asylum before visiting the United

States and that he intended to apply for asylum upon arrival, but that he was unsure of the process.

       The 2000 Country Report on Human Rights Practices (“Report”) admitted at Soebiakto’s

hearing stated that the Indonesian Constitution provided for religious freedom for Christians. The

Report noted that the government officially promoted racial and ethnic tolerance, and that ethnic

Chinese comprised three percent of the Indonesian population, by far the largest non-indigenous

minority group. The Report also noted that, due to the substantial role in the economy played by

ethnic Chinese, socioeconomic and political tensions often arise between poor Muslims and more

affluent Sino-Indonesian Christians. Specifically, this anti-Chinese sentiment led to economically

motivated attacks on Chinese-owned businesses in 1998. However, since that time, the government

has revoked decrees that forbade the public celebration of the Chinese New Year, the instruction of

the Chinese language, and the possession of Chinese language publications.

                                             II. Analysis

       The IJ pretermitted Soebiakto’s claim for asylum, concluding that his application was not

timely filed. Soebiakto appeals, claiming error in the IJ’s denial of asylum. An alien must prove by

clear and convincing evidence that he filed for asylum within the requisite one year period. 8 U.S.C.

§ 1158(a)(2)(B). However, if the alien can demonstrate extraordinary circumstances prevented him

from filing within the one year time period, the time limitation may be waived in the IJ’s discretion.

8 U.S.C. § 1158(a)(2)(D).


                                                   3
         “In most cases, this court has jurisdiction to review a final order of removal resulting from

the denial of an asylum request.” Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2001) (citing

8 U.S.C. § 1252(a)(1)). However, “[t]he language of 8 U.S.C. § 1158(a)(3) clearly deprives [this

court] of jurisdiction to review an IJ’s determination that an asylum petition was not filed within the

one year limitations period, and that such period was not tolled by extraordinary circumstances.” Id.

         Here, the IJ found that Soebiakto failed to apply for asylum within one year of his arrival in

the United States, as he arrived on October 21, 1999 and filed his application for asylum in April or

May of 2001. She further found that Soebiakto was aware of the application process but did not

timely apply and that Soebiakto failed to demonstrate extraordinary circumstances or changed

country conditions which would waive the one year deadline. Because we lack jurisdiction to review

the IJ’s denial of asylum on the basis of untimeliness, Tarrawally, 338 F.3d at 185-86, we dismiss

Soebiakto’s petition for review as to the denial of his asylum claim. See Hakeem v. INS, 273 F.3d

812, 815 (9th Cir. 2001).

         The IJ additionally found that Soebiakto presented insufficient evidence to warrant a grant

of withholding of removal. An alien is eligible for withholding of removal if “the Attorney General

decides that [his] life or freedom would be threatened in [his home] country on account of race,

religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §

1231(b)(3). Under this provision, he must demonstrate a “clear probability of persecution.” Fatin

v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993). As in an asylum claim, the alien must prove persecution

on one of the statutorily enumerated grounds that was committed by the government or forces the

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

2002).


                                                   4
        Where the BIA affirms the decision of the IJ without opinion, we review the IJ’s decision as

if it were the BIA’s. 8 C.F.R. § 1003.1(e)(4); Gao, 299 F.3d at 271. Whether an applicant for

withholding has demonstrated a clear probability of persecution is a factual determination reviewed

under the substantial evidence standard. Gao, 299 F.3d at 272.

        The IJ’s conclusion that Soebiakto failed to demonstrate that he qualified for withholding of

removal is supported by substantial evidence. Soebiakto’s “bitter experiences” could not fairly be

characterized as rising to the level of persecution. Persecution encompasses “threats to life,

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

freedom,” but does not encompass “all treatment that our society regards as unfair, unjust, or even

unlawful or unconstitutional.” Fatin, 12 F.3d at 1240. Furthermore, “generally harsh conditions

shared by many other persons” - here, other ethnic Chinese Christians - “do not amount to

persecution.” Id. & n.10 (approving the BIA’s definition of persecution) (internal quotations and

citations omitted).

        The IJ reasonably concluded that Soebiakto should have supported his testimony with

corroborating evidence. While the applicant’s credible testimony “may be sufficient to sustain the

burden of proof without corroboration,” the BIA may count a failure to corroborate against an alien

when (1) it is reasonable to expect corroboration and (2) the alien lacks a satisfactory explanation

for not corroborating. Abdulai v. Ashcroft, 239 F.3d 542, 552-53 (3d Cir. 2001).

        The IJ never explicitly discredited Soebiakto’s testimony, but found his testimony alone

insufficient evidence of persecution. In her opinion, the IJ set forth in great detail all of Soebiakto’s

claims and noted inconsistencies between his oral testimony and his written claims of persecution

(for example, when native Indonesians harassed Soebiakto and his wife in their car at a stop light,


                                                   5
he stated in his affidavit that he gave them no money, but in his hearing he testified that he gave

them 1,000 rupiah). In all, three pages of the IJ’s opinion offer support for why she believed it was

reasonable to expect corroboration. For example, Soebiakto claimed to have owned several

businesses in Indonesia, yet he provided no documentation to evidence that he ever owned these

businesses. Also, given that all of Soebiakto’s family were still in Indonesia, the IJ believed they

could have provided corroboration of his claims relatively easily.

       Finally, the IJ correctly found that because Soebiakto admitted he did not suffer persecution

on account of his religion, and because he was able to attend church regularly while in Indonesia,

he did not demonstrate persecution on this ground and accordingly did not merit withholding of

removal.

                                         III. Conclusion

       For the foregoing reasons, we will dismiss Soebiakto’s petition for review of his asylum

claim and deny his petition for review of withholding of removal.




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