                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3860




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                                          NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


            No. 06-3860 / 07-1785




             ANIK TJIO;
      TJANDRA HENDRO SOESANTO

                       Petitioners

                       v.

         ATTORNEY GENERAL OF
          THE UNITED STATES,

                      Respondent




     On Petition for Review of an Order
     of the Board of Immigration Appeals
 (Agency Nos. A79-347-324 and A79-347-325)




Submitted pursuant to Third Circuit LAR 34.1(a)
               February 8, 2008


         Before: McKEE, AMBRO,
       and ALDISERT, Circuit Judges


            (Filed: March 26, 2008)
                                   ___________________

                                        OPINION
                                  ____________________

McKEE, Circuit Judge:

       Tjandra Soesanto and Anik Tjio (husband and wife) petition for review of a

decision of the Board of Immigration Appeals.1 For the reasons that follow, we will deny

the petition.2

                                               I.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not set forth the factual or procedural history except insofar as may be helpful to our

brief discussion.

        On July 24, 2006, the BIA dismissed Petitioners’ appeal of the Immigration

Judge’s order denying their applications for asylum, withholding of removal and

protection under the Convention Against Torture (the “CAT”). On February 13, 2007, the

BIA issued a second decision in which it vacated the IJ’s finding that Petitioners’ asylum

application was frivolous, but reaffirmed the IJ’s denial of relief. We now hold that

substantial evidence supports the BIA’s decision.


        1
         Petitioner Soesanto initially claimed eligibility for relief as a derivative of Tjio’s
application for asylum and withholding of removal. He subsequently filed his own application
and the IJ held joint hearings on their applications.
        2
         Petitioners argue that the Board erred in failing to consider a Motion to Hold Decision
in Abeyance “that has not been included in the Administrative Record.” Petitioners’ Br. at 10.
Our review is limited to the administrative record, and we may not consider the Board’s failure to
rule on a motion that is not included in that record. Dia v. Ashcroft, 353 F.3d 249 (3d Cir. 2003)
(en banc).
                                             II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We apply an “extremely

deferential” substantial evidence standard to the BIA’s findings of fact. Chen v. Ashcroft,

376 F.3d 215, 223 (3d Cir. 2004). Accordingly, we will reverse the BIA’s determinations

on issues like past persecution, the likelihood of future persecution, and the likelihood of

torture only if “the evidence not only supports a contrary conclusion, but compels it.”

Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001).

       We uphold an IJ's adverse credibility determinations “if they are supported by

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

Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005). Where an IJ makes an adverse

credibility finding, he/she must supply specific, cogent reasons for concluding that the

petitioner is not credible. Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.

2006). In addition, the IJ's conclusions must be based on the record, not on “conjecture or

speculation.” Dia v. Ashcroft, 353 F.3d 228, 249-250 (3d Cir. 2003).

                                             III.

       Petitioners claim that they will be harmed and persecuted in Indonesia on account

of their religion and ethnicity. They offered evidence relating to a sexual assault on Tjio in

a shopping mall in Indonesia. They also testified to subsequent threats and attempts to

extort money from Petitioners by a security guard and a police officer.

       The IJ dismissed Petitioners’ application for asylum because it was not filed within



                                              3
one year of their entering the United States and neither Petitioner could establish changed

or extraordinary circumstances. See 8 U.S.C. § 1158(a)(2). The IJ also denied

withholding of removal and relief under the CAT. In doing so, he noted several

inconsistencies and contradictions between Tjio’s written applications, her affidavit, and

her hearing testimony, as well as other perceived problems with both Petitioners’

testimony. The IJ found that both Tjio and Soesanto were “totally incredible” and ruled

that they had submitted a frivolous application. Alternatively, the IJ held that even if their

testimony was believed, they had not established past persecution or a “clear probability of

[future] persecution.” Finally, the IJ held that the country reports and other materials

submitted by Petitioners did not establish a pattern or practice of persecution of Chinese

Christians in Indonesia.

       The BIA initially upheld all of the IJ’s findings in a two-paragraph per curiam

order dated July 24, 2005. On February 13, 2007, the BIA issued a second opinion and

order addressing Petitioners’ motion to reopen and reconsider.3 Therein, the BIA

addressed their challenge to the adverse credibility finding and Petitioners’ argument that

their due process rights had been violated by the IJ’s conduct of their hearings.4 The BIA


        3
        In the meantime, Petitioners sought review of the BIA’s first order. Their Petitions have
been consolidated.
        4
         Relying in part on cases in which we have criticized Judge Ferlise’s conduct. See Cham
v. Attorney General, 445 F.3d 683 (3d Cir. 2006); Shah v. Attorney General, 446 F.3d 429 (3d
Cir. 2006); Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006); Fiadjoe v. Attorney General,
411 F.3d 135 (3d Cir. 2005), Petitioners argued to the BIA that Immigration Judge Ferlise had
acted improperly.

                                               4
ruled that Judge Ferlise had not acted improperly. Specifically the BIA noted that the IJ’s

“decision focused on inconsistencies and was often repetitive in describing the credibility

problems he saw; however, this does not rise to a violation of due process nor does it

establish clear error.” Supp. App. at 3. The BIA also found that even though the IJ took

“a direct role in questioning,” there was no evidence of “badgering or bullying” such as we

have previously noted. Id. The BIA acknowledged that Judge Ferlise had been

reprimanded in several cases, but observed that “one cannot simply assume that he lacked

decorum in every case before him.” Id.

       The BIA also found that the IJ’s adverse credibility determination was not based on

speculation or conjecture, but rather “involved conflicting statements in [Tjio]’s written

statements and her testimony about the specifics surrounding [her] claim of persecution.”

Id.

       The BIA agreed with the IJ’s finding that Petitioners’ asylum claim was time-

barred, and the Board reaffirmed the IJ’s denial of withholding of removal and relief under

the CAT. The BIA explained that, regardless of Petitioners’ credibility, the incidents they

described “do not establish past persecution and are insufficient to establish that it is more

likely than not the respondents will be persecuted or tortured if returned to Indonesia.” Id.

at 4. (citing Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). The BIA did, however,

vacate the IJ’s finding that Petitioners’ asylum application was frivolous.

                                             IV.



                                              5
       As a threshold matter, we do not have statutory authority to review the findings that

the asylum application is time-barred. 8 U.S.C. § 1158(a)(3). See also Bonhometre v.

Gonzales, 414 F.3d 442 (3d Cir. 2005) (aliens cannot seek review of a claim not presented

to the Board).

       The BIA’s denial of Petitioners’ application for withholding is supported by

substantial evidence. Petitioners bear the burden of proving that they will more likely than

not face persecution on account of a protected ground. See INS v. Stevic, 467 U.S. 407,

429-30 (1984). As noted by the BIA, persecution “connotes extreme behavior” such as

“threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom.” Supp. App. at 4 (quoting Fatin v. INS, 12 F.3d

1233, 1240 (3d Cir. 1993)).

       The BIA did not clearly err in finding that the incidents described by Tjio and

Soesanto do not establish past persecution and are insufficient to establish that it is more

likely than not that the respondents will be persecuted or tortured if returned to Indonesia.

Moreover, our independent review of their due process claim confirms the BIA’s

conclusion that the IJ’s behavior fell short of “badgering and bullying” the Petitioners. We

agree, however, that his conduct of the hearing was certainly not a model of decorum.

Nevertheless, the BIA correctly concluded that “most of the discrepancies on which the

Immigration Judge relied to find the respondents incredible were revealed during cross-




                                              6
examination when the Immigration Judge was less interruptive.” 5

       Even assuming that Petitioners’ testimony is credible, there is still substantial

evidence to support the BIA’s affirmance of the IJ’s holding that they did not establish a

pattern or practice of persecution. See also Lie v. Ashcroft, 396 F.3d 530, 536–38 (3d Cir.

2005) (substantial evidence supported findings that harms to an ethnic Chinese citizen of

Indonesia were not so severe as to constitute persecution, and that a pattern or practice of

persecution was not established). They certainly underwent hardships, harassment and

discrimination. Their plight was aggravated by official corruption on the part of the

police. However, we explained in Fatin v. I.N.S., 12 F.3d 1233, 1239 (3d Cir. 1993), that

much more is needed to sustain a claim for withholding of removal.

       Petitioners’ brief does not provide any separate analysis of their CAT claim.

However, it is clear from the record that their CAT claim is far weaker than the

withholding of removal claim and that it was properly rejected. The mistreatment that they

described falls woefully short of “torture.” See Lukwago v. Ashcroft, 329 F.3d 157, 182-

83 (3d Cir. 2003).

       Accordingly, we will deny the Petition for Review.




        5
          The transcript of direct examination reveals that a majority of the questions came from
the IJ rather than Petitioners’ attorney. At times the transcript reads more like an interrogation
than a hearing. Nonetheless, the BIA’s decision to uphold the adverse credibility finding is
supported by substantial evidence in this instance. Moreover, as we have explained, the record
would not support relief even if we accept Petitioners’ testimony.

                                                7
