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


10-6-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2647




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2647


                               LAMIRAN HARDIONO,

                                                       Petitioner
                                           v.

                           ATTORNEY GENERAL OF THE
                                UNITED STATES,

                                                       Respondent



                        On Petition for Review of an Order of
                         The Board of Immigration Appeals
                    Immigration Judge: Honorable Miriam K. Mills
                                 (No. A96-264-137)


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 28, 2006

                      Before: McKEE and AMBRO, Circuit Judges
                              and RESTANI,* Chief Judge

                             (Opinion filed October 6, 2006)



                                       OPINION



  *
    Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
AMBRO, Circuit Judge

       Lamiran Hardiono petitions for review of an order issued by the Board of

Immigration Appeals (“BIA”) affirming the denial of his applications for asylum,

withholding of removal, and protection under the United Nations Convention Against

Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”). We have jurisdiction to consider this petition for review under Section 242(b)

of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1252(b). For the

reasons set forth below, we deny the petition.

                                             I.

       We highlight only those facts that are pertinent to our analysis. Hardiono, a

Christian, is a native and citizen of Indonesia. He came to the United States as a non-

immigrant visitor on February 26, 2000, and was authorized to stay until August 25,

2000. However, he overstayed his visa and was charged with removal under 8 U.S.C. §

1227(a)(1)(B). Hardiono conceded the charge of removal and proceeded to apply for

asylum, withholding of removal, and protection under the CAT; in the alternative, he

requested voluntary departure. Hardiono asserted in an affidavit attached to his

applications, as well as in oral testimony, that he feared persecution in Indonesia because

of his religion; however, there were significant differences in his accounts of prior harm

suffered in Indonesia.

       The immigration judge (“IJ”) who considered Hardiono’s applications concluded

that he was ineligible for asylum because his petition was filed well after the one-year

                                             2
limitations period and failed to provide any reasonable explanation for this delay. See 8

U.S.C. § 1158(a)(2)(B), (D) (governing time limitation for asylum claims). In addition,

the IJ found that Hardiono had not demonstrated a well-founded fear of future

persecution, because his testimony was not credible and he failed to present objective

evidence of harm due to his religion. As a result, the IJ concluded that Hardiono’s lack of

credibility and absence of other evidence defeated as well his withholding of removal and

CAT claims. See 8 U.S.C. § 1231(b)(3)(A) (governing withholding of removal claims); 8

C.F.R. §§ 208.16, 208.18 (governing CAT claims). The IJ granted Hardiono voluntary

departure, despite her determination that Hardiono lacked credibility.

       Hardiono appealed the IJ’s decision with respect to his asylum, withholding of

removal, and CAT claims. The BIA affirmed the IJ’s decision and dismissed Hardiono’s

appeal. In doing so, the BIA agreed that Hardiono’s asylum application was untimely,

that he had not demonstrated the existence of extraordinary circumstances preventing

compliance with the one-year limitations period, and that he had not established that he

would be persecuted or tortured if he returned to Indonesia. The BIA reaffirmed the IJ’s

order permitting Hardiono voluntary departure. Hardiono timely seeks our review.

                                            II.

       Under 8 U.S.C. § 1158(a), we do not have jurisdiction to review the IJ’s

determination that Hardiono’s asylum claim was not filed within the one-year limitations

period, nor can we review a judgment that the period was not tolled by extraordinary

circumstances. 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.

                                             3
2003).

         We do have jurisdiction to review the IJ’s decision to deny Hardiono’s petitions

for withholding of removal and CAT relief. Where the BIA “adopts the findings of the IJ

and discusses some of the bases for the IJ’s decision, we have authority to review the

decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.

2004). Where, as here, the IJ concludes that the petitioner is not credible, we review this

determination “for substantial evidence.” Id. Under this standard, “we must uphold an

adverse credibility determination unless ‘any reasonable adjudicator would be compelled

to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

         Adverse credibility determinations must be “appropriately based on inconsistent

statements, contradictory evidenc[e], and inherently improbable testimony . . . in view of

the background evidence on country conditions.” Chen, 376 F.3d at 223 (internal

quotation marks and citations omitted). Here, Hardiono’s written affidavit and oral

testimony regarding alleged religious persecution in Indonesia were plagued by

significant differences. In addition, Hardiono was unable to explain these inconsistencies.

He also failed to account for the lack of corroboration from his Christian family members

who remain in Indonesia and who supposedly experienced religious attacks alongside

him. As a result, we hold that there was substantial evidence to find that Hardiono’s

testimony was not credible, and therefore that he did not have a well-founded fear of

future persecution or torture.

                                         * * * * *

                                              4
      Accordingly, we deny Hardiono’s petition for review. We do not disturb the grant

of voluntary departure ordered by the IJ and reaffirmed by the BIA.




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