                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1382




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"Kurniawan v. Atty Gen USA" (2004). 2004 Decisions. Paper 934.
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                                                                NOT PRECEDENTIAL

                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 03-1382
                                     ___________

                         FREDY SUSANTO KURNIAWAN,
                                             Petitioner

                                              v.

              JOHN ASHCROFT, Attorney General of the United States,
                                                 Respondent

                                     ___________


          ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS

                                  (No. A79-307-766)

                                     ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 11, 2004

                BEFORE: SLOVITER and NYGAARD, Circuit Judges.
                         and SHADUR,* District Judge.




                               (Filed: March 16, 2004 )

                                     ___________



*        Honorable Milton I. Shadur, Senior District Judge for the United States
District Court for the Northern District of Illinois, sitting by designation.
                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Appellant Fredy Susanto Kurniawan appeals the Board of Immigration

Appeals’ decision denying him asylum and withholding of removal. We will affirm.

              Because the facts are known to the parties, we review them only briefly.

Kurniawan, a Christian of Chinese ethnicity, is a citizen of Indonesia. Kurniawan alleges

that he and his family suffered persecution in Indonesia on the basis of their ethnicity and

religion. In a hearing before the Immigration Judge (“IJ”), Kurniawan described an

incident that occurred while he was in high school, in which he was beaten and robbed.

Kurniawan also reported that his father’s business had been repeatedly burned and looted.

              Upon arrival in the United States, Kurniawan arranged to have an

intermediary prepare his asylum application. The intermediary filed the application after

the one-year time limitation had elapsed. Kurniawan thereafter filed an application on his

own behalf, seeking a waiver of the one-year bar. After hearing testimony about the

delay, the IJ concluded that no waiver of the limitation period was warranted. The IJ

found that Kurniawan lacked credibility as to his knowledge of the asylum process and in

his description of the “persecution” he claims to have suffered. Based on these findings,

the IJ denied Kurniawan relief in the form of asylum or withholding of removal, but




                                             2
granted his request for voluntary departure. The BIA summarily affirmed.1 Because the

BIA deferred to the IJ’s decision, we review the IJ’s opinion. Mulanga v. Ashcroft, 349

F.3d 123, 131 (3d Cir. 2003).

              First, Kurniawan argues that the IJ should have waived the one-year

limitation period, because the ineffective assistance of his intermediary constitutes

extraordinary circumstances. See 8 U.S.C. § 1158(a)(2)(D). W e lack jurisdiction to

consider such a claim. Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003) (“We

agree that the language of 8 U.S.C. § 1158(a)(3) clearly deprives us 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.”).

              We have jurisdiction to consider Kurniawan’s other arguments pursuant to

8 U.S.C. § 1252(a)(1). We review the IJ’s credibility determination, as well as his finding

on whether Kurniawan demonstrated persecution, for substantial evidence. Mulanga, 349

F.3d at 131. We will reverse “‘only if there is evidence so compelling that no reasonable

factfinder could conclude as the [IJ] did.’” Id. (quoting Kayembe v. Ashcroft, 334 F.3d

231, 234 (3d Cir. 2003)). We conclude that substantial evidence supports the IJ’s

findings. There were multiple inconsistencies in Kurniawan’s testimony and he provided

few documents to corroborate his story. As Kurniawan was not credible regarding past




1.      Kurniawan’s challenge of the sum mary affirmance procedure fails un der Dia
v. Ashcroft, 353 F.3d 228 (3d C ir. 2003) (en banc).

                                             3
persecution, he was not entitled to a presumption of future persecution. See Abdulrahman

v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).

             For the reasons set forth, we will affirm the decision of the Board of

Immigration Appeals.




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